MUHBAT JAMAL vs The STATE
This matter concerns a bail application filed by the petitioner, who is accused of an offence under Section 392 of the Pakistan Penal Code 1860, following his arrest in FIR No. 24/15. The core legal question was whether the petitioner was entitled to post-arrest bail given the conflicting versions of the incident: the prosecution alleged robbery, while the petitioner contended that the taking of the complainant's he-goats was a customary fine imposed for the transgression of pasture boundaries, rather than a criminal act. The Court held that the petitioner's plea regarding the customary nature of the act required further inquiry and determination by the trial court. Consequently, the Court ruled that the case fell within the scope of 'further inquiry,' thereby entitling the petitioner to the concession of bail. The key principle laid down is that where an accused raises a plausible defense that challenges the criminal intent or nature of the act, and such defense requires factual determination at trial, the case warrants the grant of bail pending trial.
- Does a defense plea that an act was a customary fine rather than a criminal offence constitute grounds for further inquiry in a bail application?
- Is a tentative assessment of the prosecution's evidence required at the bail stage?
- Section 392, Pakistan Penal Code 1860
' MUHAMMAD ALAM, J.---Petitioner who is involved for the, offence of section 392, P.P.C., booked through FIR No, 24/15 of Police Station Singul Punial, District Ghizer, seeks his release on bail through this petition. Previously, petitioner moved similar bail petition (B.A. No,42/2015) in the court of Sessions Judge Ghizer, who through his order dated 01-09-2015, did not grant the bail facility to the petitioner.
2. Prosecution story of occurrence is that, on the day of occurrence, petitioner/accused took four he-goats from the herd of goats of the complainant. Petitioner threatened the complainant of dire consequences if the complainant resisted. Police chalked FIR (FIR No,24/15) in the Police Station Singul, arrested petitioner/accused on 09-03-2015, and after completion of investigation, submitted challan for trial of the petitioner.
3. I have heard learned counsel for petitioner and learned Deputy Advocate General and have gone through the file. Learned counsel for the petitioner argued that the case against petitioner is false, as from ex-facie perusal of FIR, it is evident that at the time of occurrence, petitioner was alone while the complainant had three other persons with him. So no question of use of force or threat of use of force on the part of petitioner arises. Moreover, counsel for petitioner was of the opinion that the said he-goats were taken from the complainant party as a customary fine for transgression of the customary boundaries of pastures by the herd of the complainant party and never as an offence. On the other hand, learned Deputy Advocate General argued that petitioner is habitual offender as has been pointed out in the impugned order, therefore, is not entitled to the bail facility.
4. At this stage of the case, we are required to tentatively assess the prosecution evidence and the correctness or otherwise of the plea raised by the petitioner/accused. In para No,4 of the petition, petitioner has pleaded that he took the he-goats of the complainant party as a customary fine and never with any intention of any offence etc. In my opinion, the argument of the counsel for petitioner that the taking of he-goats was not an offence but were taken as customary fine, need further consideration. In this connection, para No,4 of the petition is very relevant, wherein, petitioner has clearly contended that by taking the alleged he-goats, petitioner did not commit any offence and rather the same were being taken as a customary fine. So the trial court is yet to determine that taking of the he-goats is as a customary fine or amounted to any offence. This very fact is sufficient to hold that the case is one of further inquiry and petitioner is entitled for concession of bail.
5. I, therefore, allow this petition and direct for immediate release of petitioner from custody, if not required in any other case, and that also subject to his furnishing personal bail bonds in the sum of Rs,10,00,000/- with two sound sureties, each in the like amount to the satisfaction of the trial court.
Petition allowed. File be consigned to record.