ASIF Versus State
ALI BAIG, J.--- Having failed to get the concession of bail from lower fora/courts the petitioner/accused has sought post arrest bail in case FIR No.02/2019 dated 23-4-2019 registered under sections 457, 380 and 511, P.P.C. at Police Station Nomal District Gilgit through the instant criminal miscellaneous petition.
2. Briefly prosecution story as disclosed in the FIR is that on 20-4-2019 at 0300 hours the complainant heard some clamorer/a noise outside his house and accordingly, the complainant came out from his house and found that a veiled/ masked person holding a knife in his hand was standing in the veranda of his house. Seeing the complainant the aforesaid person decamped from the veranda of house of the complainant. Later on the complainant came to know that masked veiled person was present petitioner/ accused namely Asif son of Niat Khan as while decamping from the place of occurrence, the witnesses namely Mukash and Danish had seen/identified the petitioner/accused.
3. The learned counsel appearing on behalf of the petitioner/accused contended that the there is about three days unexplained delay in lodging of FIR. The learned counsel for the petitioner/accused further argued that no eye-witness has witnessed the petitioner/accused at the place of occurrence and no any stolen property has been recovered from the petitioner/accused. The learned counsel for the petitioner/ accused further argued that sections 457 and 380, P.P.C. do not attract to the case of the petitioner/ accused and even offences under sections 457 and 380 do not fall within the ambit of prohibitory clause of section 497(1), Cr.P.C., hence the petitioner / accused is entitled for concession of bail as a right. The learned counsel for the petitioner/accused further argued that despite lapse of about three months of the registration of FIR Prosecution has failed to submit challan against the petitioner/ accused in the trial court.
4. Conversely, the learned Dy. Advocate General vehemently opposed this petition by contending that the petitioner/accused is directly charged in the FIR and the offences allegedly committed by the petitioner/accused are heinous in nature, as the petitioner/ accused has committed an offence of lurking house trespass at night. The learned Dy. A.G. further argued that the petitioner/accused is a habitual offender and besides the instant case another theft case has been registered against the petitioner/accused at Police Station Nomal.
5. Heard the arguments of Mr. Basharat Ali Advocate, appearing on behalf of the petitioner/accused and Malik Sher Baz, Dy. A.G. appearing on behalf of the state and with their able assistance I perused the material available on the record minutely.
6. Admittedly, the occurrence was taken place on 20-4-2019 at 0300 hours and FIR has been registered/lodged on 23-4-2019 at 1030 a.m., after delay of about 3 days of the occurrence without any plausible explanation whereas, the police station is situated at the same village and no any independent witness has been shown/cited in the FIR as eye-witness. The petitioner/accused has not stolen any property from the house of the complainant, thus it appears that the case of the petitioner/accused is of further inquiry. Moreover, offence under sections 380, 457 and 511, P.P.C. do not fall within the ambit of prohibitory clause of section 497, Cr.P.C., hence the petitioner/accused is entitled for concession of bail.
7. For what has been discussed above, this petition is allowed and consequently, the petitioner is admitted to post arrest bail subject to his furnishing bail bonds in the sum of Rs.200,000/- (Two lacs) with two sureties each in the like amount to the satisfaction of vacations/Deputy Judicial Magistrate at Gilgit.
8. The observations made in this order are tentative in nature and should, in no way prejudice the proceedings during trial of the case. File.
SA/110/GB Bail granted.