BAQIR ALI alias ASHGAR Versus State
ORDER
MALIK HAQ NAWAZ, J.--- The petitioners have been booked for the above offence vide FIRs Nos. 84/85/86/87 and 88/2016 under section 379, P.P.C. registered at Police Station City Skardu.
2. The petitioners applied for post arrest bail in the Court of learned Sessions Judge Skardu, who declined all the bail petitions through a single judgment dated 22-12-2016. The petitioners being not satisfied from the order of learned Sessions Judge have come to this Court for concession of post arrest bail.
3. Since Cr. Misc. 3, 4, 5, 6 and 07/2017 Cr. Misc. 9, 10, 11, 12 and 13/2017 involve similar questions of law and facts, therefore, These are being disposed of through this single judgment.
4. The main allegations contained in all the above FIRs are that the petitioners were stealing the goats and cows of the people and after slaughtering these animals, they were selling meat to the various butcher shops in Skardu and around.
5. The learned counsel for the petitioners contended that the orders of learned trial Court are not sustainable in the eyes of law as the learned Sessions Judge has refused the bail against the settled norms, which govern the principal for grant/refusal of bail. The learned counsel further submitted that the punishment provided for the offence under section 379, P.P.C. is only 3 years, which does not fall within the prohibitory clauses of section 497, Cr.P.C. and in such like cases grant of bail is rule while refusal is an exception. Per learned counsel there exists no exception, which may be a disentitling factor for grant of bail.
6. The learned Addl. Advocate General opposed the petition with full force and submits that the petitioners are habitual offender, who deprived the poor and destitute people of the area from their valuable assets, which they were possessing in shape of cows and goats. The miseries of the poor people could not be felt by anyone except those who had been the victim of these tragic incidents. The learned Additional Advocate General further contended that the bail cannot be claimed in such like cases as a right and the discretion of bail in such like heinous cases should not be extended to the petitioners.
7. After hearing both the parties at a considerable length and perusal of record shows that the petitioners were stealing the cows and goats of poor people, which were being kept by them for feeding their families. The petitioners seems to be habitual offenders as evident from the orders of learned Sessions Judge and some skins of slaughtered animals were also recovered from the possession of the petitioners, which cannot be taken lightly. The agonies and miseries of the destitute families cannot be expressed in words as there is a famous saying that "only the wearer knows where the shoe pinches".
8. Bail in the offence which does not fall within prohibitory clause of section 497(1), Cr.P.C. is not a rule as each and every case has its own peculiar circumstances, which tilt the mind of the Court either in favour or against an accused. No doubt that bail cannot be withheld as measures of advance punishment, but such type of hard core criminals cannot be blessed with the discretion and cannot be let loose on the society to "hang a sheep instead of lamb." The grant of bail in such like cases would be an erroneous decision and a miscarriage of justice and every miscarriage of justice would be a taint on the reputation of judicature and will be detrimental to the common interest of society and therefore, the exercise of discretion in the offences against the society should be exercised with extra care and caution.
9. However the case of accused Baqir Ali is at different footing as remand of one Asghar Ali was obtained from the Court of learned Judicial Magistrate Skardu, even it is not mentioned in the remand from that accused was being known as Asghar Ali and his actual name is Baqir Ali I.O. was bound to rectify the said deficiency before committal of the accused to judicial custody. The learned counsel has placed a copy of form "B" along with the petition, wherein the name of one Baqir Ali son of Asghar is mentioned his date of birth is shown 11-11-2001 and it revealed that Farman Ali has only three sons namely Nasir Ali, Baqir Ali and Zahid Ali. The prosecution has to establish the identity of accused either through some evidence or rectifying the same in challan, till then his case is one of the further inquiry up to his extent and he is allowed bail subject to furnishing his bail bonds in sum of Rs.5,00000/- (five lac) with two sureties each in the like amount to the satisfaction of any Judicial Magistrate at Skardu.
10. In the light of above discussion, Cr. Misc. Nos. 9, 10, 11, 12 and 13/2017 up to the extent of petitioner Baqir Ali alias Ashgar Ali are allowed while Cr. Misc. Nos.3, 4, 5, 6 and 7/2017 are declined.
11. The petitions titled above are hereby disposed of accordingly.
JK/12/GB Order accordingly.