SHER DIL vs The STATE
This matter concerns a petition for post-arrest bail filed by the petitioner, who was booked for offences under sections 436 and 457 of the Pakistan Penal Code 1860 in FIR No. 17/2019. The petitioner sought bail after the Additional Sessions Judge refused it, arguing that he was not named in the FIR, there were no eyewitnesses, and he was physically incapacitated. The State opposed the bail, contending that incriminating material was discovered during the investigation and that the petitioner had misused the concession of bail granted in a previous case (FIR No. 21/2019) by committing a more heinous offence while on bail. The Court held that while the petitioner was not named in the FIR, he was implicated by witness statements recorded under section 161 of the Code of Criminal Procedure 1898. Furthermore, the Court emphasized that the offence under section 436 of the Pakistan Penal Code 1860 falls within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898, and that bail may be refused if there is a risk the accused will repeat the offence.
- Can bail be refused if there is a likelihood that the accused will repeat the offence?
- Does the commission of a new offence while on bail disentitle an accused from the discretionary relief of bail?
- Is an accused entitled to bail if they were not named in the FIR but were implicated during the investigation?
- Section 436, Pakistan Penal Code 1860
- Section 457, Pakistan Penal Code 1860
- Section 440, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
- Section 161, Code of Criminal Procedure 1898
ORDER
MALIK HAQ NAWAZ, J.---The petitioner has been booked for the offences under sections 436/457, P.P.C. vide FIR No.17/2019 registered at Police Station Jutial, District Gilgit.
2. The petitioner was refused bail by the learned Additional Sessions Judge vide judgment/order dated 22-04-2019 and petitioner being aggrieved from the said judgment/order has approached this Court for concession of post arrest bail by filing the instant petition.
3. The learned counsel for the petitioner submitted that the petitioner is not charged in the FIR. There is no eye- witness of the occurrence and further that the petitioner is an incapacitated person, who cannot commit such like offence. The provisions of section 436, P.P.C. are not attracted in the case. The case of the present petitioner is one of the further inquiry falling under section 497(2), Cr.P.C. and he is entitled for concession of bail. The learned counsel relied on 2008 PCr .LJ 1488 and 2013 MLD 140 .
4. The learned Dy. Advocate General submitted that no doubt that the petitioner is not charged in the FIR but during investigation sufficient incriminating material has been collected against the petiti oner. The petitioner was on bail and during facility of bail, he committed the offence of this heinous nature, which disentitles him for discretionary relief of the bail.
5. The petitioner is not charged in FIR and he was found involved in the commission of offence during investigation of the case. The petitioner was on bail in a case registered against him under section 440, P.P.C. vide FIR No.21/2019 and he committed the offence during the period, when he was on bail and thus he mis-used the concession of bail. The offence under section 436, P.P.C. entails the punishment of imprisonment for life and falls within the prohibitory clauses of section 497, Cr.P.C. One of the criteria for refusal of bail in the offences even not falling within prohibitory clauses of section 497, Cr.P.C., is that if there is a chance that accused will repeat the offence the court may refuse the bail. The present petitioner committed a more heinous offence, than the earlier one, in which he was allowed bail. The petitioner has been charged for commission of the offence by PW Muhammad Yaqub and Aziz ur Rehman in their statements recorded by the police under section 161, Cr.P.C. on the following day of occurrence.
6. There is no merit in the instant petition, which is declined accordingly .