Himat Ali vs The State
This matter concerns a post-arrest bail application filed by the applicant, Himat Ali, who was charged with being a member of a wandering gang intending to commit theft. The applicant, having been refused bail by the trial court, approached the Sindh High Court under section 497, Code of Criminal Procedure 1898. The core legal question was whether the applicant was entitled to bail, given the nature of the evidence and the statutory provisions regarding non-bailable offences. The Court held that the prosecution failed to establish that the applicant was part of a wandering gang habitually committing theft. Furthermore, the Court found the identification of the applicant by police at night to be weak and noted the absence of independent witnesses. Emphasizing that the alleged offence did not fall within the prohibitory clause of section 497, Code of Criminal Procedure 1898, the Court reiterated the principle that in cases where the punishment is less than ten years, the grant of bail is the rule and refusal is the exception. Consequently, the bail application was allowed.
- Is the grant of bail the rule and refusal the exception in offences punishable with imprisonment for less than ten years?
- Does the identification of an accused by police personnel at night under the light of a police mobile constitute strong evidence for the purpose of bail?
- Can bail be granted on the ground of further inquiry when the alleged offence does not fall within the prohibitory clause of section 497, Code of Criminal Procedure 1898?
- Section 497, Code of Criminal Procedure 1898
- Section 497(2), Code of Criminal Procedure 1898
- Section 496, Code of Criminal Procedure 1898
ORDER
IRSHAD ALI SHAH J.---- It is alleged that the applicant with rest of the culprits being member of wandering gang associated with intention to commit theft at the place of incident and then made their A escape good leaving behind stolen motorcycle when they found police party of PS Jarwar led by ASI Sher Khan coming to them, for that the present case was registered.
2. The applicant on having been refused post-arrest bail by learned IIIrd Additional Sessions Judge, Mirpur Mathelo, has sought for the same from this Court by way of instant application under section 497, C r . P . C .
3. It is contended by learned counsel for the applicant that the applicant being innocent has been involved in this case falsely by the police; there is no independent witness to the incident; no independent FIR is lodged for theft of alleged recovered motorcycle and offence alleged against the applicant is not falling within prohibitory clause of section 497(2), Cr.P.C. By contending so, he sought for grant of post-arrest bail to the applicant on point of further inquiry .
4. Learned D.P.G. for the State has opposed to grant of bail to the applicant by contending that the applicant has committed the of fence which is af fecting the society at large.
5. I have considered the above arguments and perused the record.
6. Nothing has been brought on record by the prosecution which may suggest that the applicant is member of wandering gang which associates habitually to commit theft, which appears to be significant. The identity of the applicant by the police personnel at night time that too under the light of police mobile is appearing to be a weak piece of evidence. There is no independent witness to the incident. The offence alleged against the applicant even otherwise is not falling within prohibitory clause of section 497(2), Cr.P.C. The grant of bail in such like cases is rule while rejection is exception. No exceptional ground is available, which may justify withholding concession of bail to the applicant. In these circumstances, it is rightly being contended by the learned counsel for the applicant that the applicant is entitled to grant of post-arrest bail on point of further inquiry .
7. In case of Tariq Bashir and 5 others v. The State (PLD 1995 SC 34), it has been held by Hon'ble apex Court that;- "----Ss.496 & 497---Bail---Grant of bail in bailable offence is right while in non-bailable offences the grant of bail is not a right but concession/grace--Grant of bail in offences punishable with imprisonment for less than 10 years is a rule and refusal an exception."
8. In view of above, the applicant is admitted to bail subject to furnishing surety in sum of Rs.30,000/- (Thirty thousand) and P .R bond in the like amount to the satisfaction of learned trial Court.
9. The instant bail application is disposed of accordingly .