NIAZ Versus THE STATE
This is a criminal bail application arising from an FIR registered under section 17(1) of the Offences Against Property (Enforcement of Hudood) Ordinance 1979, sections 353, 324, 337-H(ii)/34 of the Pakistan Penal Code 1860, and section 13-D of the Arms Ordinance, wherein the applicant sought post-arrest bail for his alleged involvement in an attempted motorcycle snatching and subsequent police encounter. The core legal question was whether the applicant was entitled to post-arrest bail when apprehended on the spot during an armed encounter, despite the argument that the primary offence fell outside the prohibitory clause of section 497 of the Code of Criminal Procedure 1898. The Sindh High Court held that the mere fact that an offence may technically fall outside the prohibitory clause is insufficient for the grant of bail where the accused was apprehended at the scene following an exchange of gunfire with the police and supporting physical evidence was recovered. The court laid down the principle that rising trends in robbery and vehicle snatching, coupled with direct involvement in a police encounter, warrant the refusal of bail regardless of the prohibitory clause applicability.
- Whether bail can be refused in an offence not falling within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898 when the accused is involved in a police encounter?
- Does an arrest on the spot during an attempted robbery and subsequent armed confrontation disentitle an accused to post-arrest bail?
- Section 17(1), Offences Against Property (Enforcement of Hudood) Ordinance 1979
- Section 353, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 337-H(ii), Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 13-D, Arms Ordinance 1965
- Section 497, Code of Criminal Procedure 1898
ORDER
Applicant has been booked for an offence punishable under section 17(1), Offences Against Property (Enforcement of Hudood) Ordinance 1979, sections 353, 324, 337‑H(ii)/34, P.P.C. and 13‑D of Arms Ordinance.
2. The case of the prosecution as disclosed in F.I.R. is that on 6‑10‑2003 complainant Ayaz Ali and his cousin Ali Gul were returning from Warrah to the village, when they were intercepted by two persons one armed with pistol and the other with a club (Danda). The last mentioned person removed the key of motorcycle and asked the complainant party to get down. Since they resisted the said person caught P.W. Ali Gul by his neck and pulled him on which he raised cries. The other culprit fired in the air, which attracted the villagers. In the meantime a police party on patrol reached there. Both the culprits were encircled. The culprit armed with pistol made fires at the complainant party and also at police. The police also returned fire and after some time both the culprits were captured. The person armed with pistol had fire‑arm injures on his abdomen and he disclosed his name as Ghous Bux while the other one was Niaz (the applicant). F.I.R. was lodged at Police Station Gaji Khuhawar on the same day.
3. I have heard Mr. Amanullah Shaikh learned counsel for applicant and Mr. Muhammad Ismail Bhutto, learned counsel for the State.
4. Learned counsel for the applicant submitted that no damage has been caused to complainant party and there was a simple attempt to snatch the motorcycle, therefore, the offence would at the best be punishable with three years and will not fall within the prohibitory clause of section 497, Cr.P.C. He further submitted that no independent witness has been cited and the investigation has already been completed. He relied on the cases of Muhammad Asif Mumtaz v. State 1999 PCr.LJ 283 and Muhammad Azeem v. State 1999 PCr.LJ 308 in support of his c6ntentions.
5. Mr. Muhammad Ismail Bhutto, learned State Counsel vehemently opposed the bail and submitted that the applicant was arrested on the spot and the Lathi was secured from his possession; there was encounter with police and empties of cartridges/bullets from both sides were secured, and there is ample evidence to connect the applicant with the crime directly.
6. I have considered all the contentions in the light of .material on record.
7. In the cited case of Muhammad Azeem, there was no harm caused to anyone and being a case of simple attempt to commit robbery learned A.A.‑G. had conceded to the grant of bail. In Muhammad Asif Mumtaz's case no witness was cited from locality, therefore, the case was found to be of further inquiry. The facts and circumstances of the instant case any remarkably different. The applicant is said to have removed the key from the switch board, caught hold of P. W. Ali Gul from .the neck and pulled him for the purpose of snatching the motorcycle, while the other accused fired in the air and when police party reached the scene, fires were made at police also. The empties of cartridges as well as bullets have been secured which prima facie support the case of prosecution. The cited authorities would, therefore, not apply in the instant case. The cases of robbery and snatching of vehicles are on high rise, the mere fact that technically speaking the case of attempt to commit robbery may not fall within the prohibitory clause of section 497, Cr.P.C. is no ground for grant of bail, as there was an encounter with police also and fires were made at police and complainant party.
The bail plea, at this stage cannot be sustained; consequently the application is dismissed.
H.B.T./N‑16/K Bail refused.