Anopo alias Anopchand Versus State
The applicant sought pre-arrest bail in a criminal case registered under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979. The prosecution alleged that the applicant was spotted riding as a pillion on a motorcycle carrying contraband, but fled the scene during intercept by police, while the co-accused was apprehended and allegedly possessed liquor. The court observed that no incriminating recovery was made from the applicant's exclusive possession, the offence carried a maximum punishment not exceeding three years, and the co-accused had already been enlarged on bail. Holding that the case against the applicant called for further inquiry within the meaning of section 497(2) of the Code of Criminal Procedure 1898, the court confirmed the pre-arrest bail, establishing that mere presence on the motorcycle without any recovery, coupled with the rule of consistency, entitles an accused to bail where the offence does not fall within the prohibitory clause.
- Whether pre-arrest bail can be confirmed when no incriminating recovery is made from the accused who allegedly fled from the scene?
- Does an offence carrying a maximum punishment of three years warrant the grant of bail under the rule of further inquiry?
- Whether the rule of consistency applies when a co-accused attributed with active recovery has already been granted bail?
- Article 3/4, Prohibition (Enforcement of Hadd) Order 1979
Order
Muhammad Saleem Jessar, J.--- Through instant bail application, applicant Anopo alias Anopchand seeks his admission on pre arrest bail in Crime No.15 of 2024, registered with P.S Kaloi for offence under Article 3/4 PEHO, 1979. The case has been challaned which is now pending for trial before Court of Judicial Magistrate Diplo. After furnishing surety before this court, the applicant has surrendered before trial court and joined the trial proceedings which is fixed for hearing on 01.07.2024.
2. The crux of the prosecution case are that a police party headed by SIP Premon had left PS under their daily dairy entry No.21 at 0300 hours dated 22.05.2024. While snap checking they saw a red color motorbike came along with riders having a white colored katta (sack) lying over fuel tank. The police party intercepted them to stop but person seated on rear seat to whom they know as Anopo alias Anopchand (applicant) slipped away by making his escape good due to darkness. The person who was riding the motorbike was enquired of his whereabouts who disclosed his name to be Raja. Due to non-availability of private persons, the complainant by citing his subordinate(s) as mashirs took possession of the motorbike as well katta (sack) then 10 pints of white color watt one and 10 pints of red color dry gin. Such memo of arrest and recovery was prepared on spot. Later they came at the PS along with accused and case property where instant case was registered on behalf of the State.
3. Learned Counsel submits that though the applicant is nominated in the FIR; however, nothing incriminating has been shown to have been recovered from his exclusive possession and per allegation he while seeing the police party made his escape good, therefore, case against him requires further inquiry. He lastly prayed for grant of bail.
4. On the other hand, learned Assistant P.G appearing on behalf of State opposes the bail application; however, cannot controvert the fact that the offence with which the applicant stand charged carries maximum punishment for 03 years besides allegation against him is that he allegedly flee away from the scene of offence and nothing was recovered from his possession.
5. Heard learned Counsel for respective parties and have gone through record made available before me.
6. No doubt, the applicant is nominated in the FIR; however, allegation against him is that he whilst sitting on rear seat of motorcycle driven by co-accused was intercepted by the police and had made his escape good by taking benefit of darkness; however, police party though was less with sophisticated weapons did not follow him. As reported co-accused Raja who is said to be son of applicant from whom police recovered motorcycle as well as certain quantity of Pakistani Whisky, has been bailed out by the trial court. Though applicant has been shown sitting on rear seat of the motor bike, but at the time of fleeing away, had not left any incriminating nor has been shown to be having any article with him, connecting him with the commission of offence except mere his presence. Therefore, such allegation is yet to be established by the prosecution after recording its evidence and then trial court has to determine the same. Moreover, case is being tried by the Court of Judicial Magistrate where after recording its evidence, if prosecution may succeed to prove its charge against him even then punishment of more than three years cannot be visualized. Reliance is placed on the case of Manzoor Ali alias Mumtaz v. The State (2001 PCr.LJ 344) [Karachi]. In case the applicant may be taken into custody today, tomorrow again he will be released on bail on the ground of consistency.
7. In the circumstances and in view of dicta laid down by Hon'ble Supreme Court of Pakistan in case of Muhammad Ramzan v. Zafar Ullah and another (1986 SCMR 1380) and in case of Muhammad Tanveer v. The State and another (PLD 2017 SC 733), the case against applicant requires further inquiry. Consequently, instant bail application is hereby allowed; ad-interim pre-arrest bail granted earlier to applicant Anopo alias Anopchand son of Nanak is hereby confirmed on same terms and conditions.
8. The observations made in this decision are of a tentative nature and will not influence the merits of the case.
SA/M-79/Sindh Bail confirmed.