ASIF MUMTAZ alias POPPI Versus State
This bail application arose from a petition filed under Section 497 of the Code of Criminal Procedure 1898, concerning an FIR registered under Section 392 of the Pakistan Penal Code 1860. The petitioner sought post-arrest bail, arguing that there was an 11-day delay in lodging the FIR, that the complainant had sworn an affidavit disowning the prosecution's version, and that the recovery of the weapon was suspicious as it was allegedly used in multiple cases. The State opposed the bail, contending that the investigation found the petitioner guilty, the affidavit was not part of the police record, and the offense fell within the prohibitory clause of Section 497, Cr.P.C. The Court observed that the petitioner had maneuvered similar affidavits in multiple cases and found the police explanation regarding the weapon recovery credible. The Court held that when an offense falls within the prohibitory clause, the court must exercise greater vigilance and restraint in granting bail. Consequently, the bail application was dismissed.
- Does an offense punishable with ten years imprisonment fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898?
- Should bail be granted as a rule in cases falling outside the prohibitory clause?
- Is a court required to be more vigilant when considering bail for offenses falling within the prohibitory clause?
- Section 497, Code of Criminal Procedure 1898
- Section 392, Pakistan Penal Code 1860
ORDER
SYED SHABBAR RAZA RIZVI, J.-- -The petitioner has moved this bail application under section 497, Cr.P.C. in F.I.R. No.83 of 2004, dated 19-3-2004, under section 392, P.P.C. at Police Station, Bambanwala, District Sialkot.
2. According to the F.I.R., the complainant was coming from Daska to his village on his motor bicycle and on the day of occurrence, he was intercepted by three persons who were also riding a motorcycle. The accused persons took out their arms and aimed the same at the complainant. The complainant was deprived of his wrist watch of Rs.600. The complainant's companion Muhammad Rafiq was also deprived of Rs.700, etc.
3. The learned counsel for the petitioner submits that there is a delay of 11 days in lodging the F.I.R. He also submits that complainant has sworn an affidavit whereby, he has deposed that he gave statement against the petitioner on saying of police. The learned counsel also submits that there is a recovery of Rs.300 and a .7 MM rifle, the same rifle has been shown as a recovery item in another case also, the recovery in the other case is also shown on the same day. The recovery was witnessed by police officials only.
4. On the other hand, the learned counsel for the State submits that the petitioner has been found guilty after a proper investigation. As far as affidavit of the complainant is concerned, according to the learned counsel, the same is not on the police record as it was never produced before the Investigating Officer. The learned counsel also submits that a recovery of Rs.300 is effected from the petitioner as allegedly the complainant was deprived of Rs.300 only. She further submits that .7 MM rifle has been recovered from the petitioner with which he was armed at the time of occurrence. She also submits that the case of the petitioner falls within prohibitory clause as the punishment is prescribed 10 years for the alleged offence.
5. I have heard the learned counsel for the parties. The main emphasis of the learned counsel for the petitioner is that the complainant has disowned the version of the F.I.R. by swearing an affidavit in favour of the petitioner, whereby, he had deposed that under police pressure he recorded the F.I.R. It is interesting to note that today I am seized of three bail applications of the petitioner and in all these three bail petitions, the complainants have sworn affidavits in favour of the petitioner. None of the complainants had sworn the affidavits during the investigation as the same are not on the police record. The recovery of .7 MM rifle is shown in two cases out of three fixed today. The police officials, present in Court, have submitted that same .7 MM rifle was used in the occurrence, therefore, recovery of the same rifle is also shown in the cases. The answer of the police officials is convincing. It seems that petitioner has been successful in manoeuvering the affidavits from the complainant at the subsequent stage.
6. Section 497, Cr.P.C. is divided into two parts. One part deals with those cases which are called offences falling under prohibitory clause and the other part of section 497, Cr.P.C. deals with those offences which do not fall within the prohibitory clause. The considerations for both classes of cases are different from each other. For example, it has been held by the Supreme Court in number of cases that bail in cases which do not fall within prohibitory clause should be granted as a rule and bail should be refused as an exception. Therefore, it is obvious from the above that while considering bail in cases which fall under prohibitory clause, the Court has to be more vigilant and slow in granting the discretionary relief of bail. Therefore, in view of the above discussion, reasons and as the present case is covered by the prohibitory clause, this bail application is dismissed.
H.B.T./A-540/L Application dismissed.