MUSHTAQUE vs THE STATE
This matter concerns a bail application filed by the applicant, Mushtaque, who is facing trial for offences under sections 380, 411, and 34 of the Pakistan Penal Code 1860, relating to the theft of carpets. The core legal question was whether the applicant was entitled to post-arrest bail given the circumstances of the case, specifically the nature of the alleged involvement and the evidentiary value of the recovery. The Court observed that the FIR did not specifically implicate the applicant, the recovery of the stolen property was joint rather than from the applicant's exclusive possession, and there was a delay in lodging the FIR. Furthermore, the Court held that the offences charged did not fall within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898. Consequently, the Court determined that the applicant's guilt required further inquiry. The bail application was allowed, and the applicant was ordered to be released upon furnishing surety, establishing the principle that where evidence is based on joint recovery and lacks specific imputation, a case for further inquiry is made out for bail purposes.
- Does an offence under sections 380/411 of the Pakistan Penal Code 1860 fall within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898?
- Is a joint recovery of stolen property sufficient to deny bail to an accused when no specific role is assigned in the FIR?
- Section 380, Pakistan Penal Code 1860
- Section 411, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 166, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
ORDER
1. ' Applicant Mushtaque is facing trial for an offence punishable under sections 380/411/34, P.P.C.
2. Alongwith two others.
3. ' The F.I.R. In this incident was drawn on the basis of written report of Irfan at Police Station Kharadar, Karachi, wherein he mentioned that the carpets brought by him from Peshawar were stolen away.
4. It was indicated therein that Sajawal was responsible for theft of those carpets. The incident took place on 27-12-2001 but the report was lodged on 31-12-2001. Applicant was arrested on 11-1-2002 and on 12th and 13th January, 2002, joint recoveries of carpets were made at Lahore and Faisalabad in presence of three accused persons, namely, Sajawal, Abdul Hameed and applicant Mushtaque.
5. ' Mr. Syed Jawaid Haider Kazmi, learned counsel for applicant, submitted that the F.I.R. Does not put imputation of theft of present applicant as the specific allegation is recorded against Sajawal; there is joint recovery; the search/recovery made at Faisalabad as well as Lahore violates section 166, Cr.P.C. The involvement of applicant is based on version of co-accused recorded during investigation; the offence does not fall within prohibitory clause; and even otherwise in view of the afore-stated circumstances the case calls for further inquiry as to the guilt of present applicant.
6. Miss Masooda Siraj, learned State Counsel, submitted that complainant Irfan in his further statement and so also P.Ws. Abdul Karim and Habib-ur-Rehman have implicated Mushtaque and in particular Abdul Karim has stated that Mushtaque was standing when the main accused was collecting the carpets during the incident.
7. ' On giving anxious consideration to the contentions raised above, I would agree with learned counsel for applicant that the offence does not A fall within prohibitory clause of section 497, Cr.P.C.
8. There is delay in lodging of F.I.R., yet the active role of commission of theft is not assigned to the applicant, the recovery was joint and not from exclusive possession of present applicant and even on the basis of the statements of witnesses the guilt of applicant would call for further inquiry.
9. Consequently, the bail plea is accepted.
10. ' The application is allowed. The applicant be released on furnishing surety in the sum of Rs,50,000 (Rupees fifty thousand) and executing P.R. Bond in the like amount to the satisfaction of the trial Court. .