MUHAMMAD UMAR KHAN vs THE STATE and anothers
This criminal petition is directed against the refusal of post-arrest bail to the petitioner, Muhammad Umar Khan, who was implicated in case F.I.R. No. 515 dated 1-7-2010 registered under Section 381-A of the Pakistan Penal Code 1860 at Police Station Cantt, District Multan, for the alleged theft of a car. The core legal question before the court was whether the petitioner made out a case for the grant of post-arrest bail, particularly concerning the applicability of the prohibitory clause and the provisions of further inquiry. The Lahore High Court accepted the petition and held that the prosecution story appeared prima facie implausible, co-accused had already been granted bail or declared innocent, the offence did not fall within the prohibitory clause, and the petitioner's continued incarceration without trial served no useful purpose. The key principle laid down is that where an offence does not fall within the prohibitory clause, lack of recovery, delay or weakness in the prosecution story, and the rule of consistency regarding co-accused bring the case within the ambit of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898, entitling the accused to post-arrest bail as a matter of right.
- Whether the offence under Section 381-A of the Pakistan Penal Code 1860 falls within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898?
- Does the fact that a co-accused has been declared innocent or granted bail create grounds for extending the benefit of further inquiry to another accused?
- Can an accused be kept in indefinite incarceration when no recovery has been made from him and trial is not in sight?
- Section 381-A, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
- Section 497(2), Code of Criminal Procedure 1898
ORDER
' ALTAF IBRAHIM QURESHI, J.--Through the present petition, the petitioner Muhammad Umar Khan seeks his post-arrest bail in a case arising out of F.I.R. No,515, dated 1-7-2010, registered' with Police Station Cantt. District Multan, under section 381-A, P.P.C. For an occurrence wherein the petitioner along with his co-accused is alleged to have stolen complainant's car, parked outside Mall Plaza, Multan Cantt. On 1-7-2010 about 9-30 p.m.
3. Learned counsel for the petitioner contends that there is a delay of one day in lodging of the F.I.R.; that the ingredients of section 381-A, P.P.C. Are not attracted to the case of the petitioner; that the contract of Mall Plaza was issued in the name of the present petitioner but in fact, one Muhammad A shraf is the real Contractor, who was allowed by the petitioner to use his name being fast friends; that the offence does not fall within the prohibitory clause of section 497, Cr.P.C.; that Nazir Ahmad, a nominated accused was declared as innocent by the Investigating Officer whereas Muhammad Iqbal, another nominated accused, was allowed post-arrest bail by the learned Additional Sessions Judge, Multan; that the petitioner is behind the bars since 9-6-2011 and he is no more required by the police.
4. On the other hand, learned Deputy Prosecutor-General assisted by the learned counsel for the complainant opposed the bail application with the contentions that the petitioner is named in the F.I.R., who is the person responsible for stealing of the car, as he is thecontractor and a token was issued against parking. Therefore, he is not entitled for the grant of bail.
5. I have heard the learned counsel for the parties and perused the record.
6. In the final part of the First Information Report, it was stated by the complainant that his car was stolen by Muhammad lqbal, Nazir Ahmad, Muhammad Umar (present petitioner) and one unknown person. No source or material has been mentioned in the F.I.R. To connect them with the commission of crime except the words' that on the complainant came to know that the aforesaid persons had stolen his car. This type of story, introduced in a case of theft of car, prima facie, looks implausible. Petitioner remained on physical remand but nothing has been recovered from his person. Besides this, aforesaid Muhammad Iqbal has been allowed bail by the Court of learned Additional Sessions Judge whereas Nazir Ahmad was declared innocent by the Investigating Officer, during the course of investigation. This fact also casts serious dent in the prosecution story.
Offence with which the petitioner is charged, does not fall within the prohibitory clause. The petitioner is behind the bars since 9-6-2011 and his further incarceration in Jail for indefinite period would not serve any useful purpose, when he is no more required by the police and even the trial is not in sight. All these factors bring the case of the petitioner within the ambit of further inquiry under section 497(2), Cr.P.C.
7. In view of the above, this petition is allowed and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs,1,00,000 with one surety in the like amount to the satisfaction of the learned trial Court.