BASHIR and 2 others vs THE STATE
The applicants sought post-arrest bail in a case registered against them for an offence punishable under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. The core legal question was whether the applicants were entitled to bail given that they were named in the F.I.R., apprehended at the spot shortly after the incident, and recovered with weapons and robbed cattle. The Sindh High Court held that the bail plea could not be sustained as there was a direct allegation, the applicants were caught with the robbed property, and the case prima facie fell within the meaning of Article 129 Illustration (a) of the Qanun-e-Shahadat, 1984, making it premature to reduce the charge to a lesser offence at the bail stage. The key principle laid down is that where accused persons are apprehended red-handed at the scene with stolen property and weapons shortly after the commission of the crime, and their names appear in the F.I.R., post-arrest bail is not warranted.
- Are accused persons entitled to post-arrest bail when named in the F.I.R. and apprehended at the spot with robbed property and weapons?
- Can the offense be converted to a lesser charge under section 411 of the Pakistan Penal Code at the pre-trial bail stage when direct allegations of armed robbery exist?
- Does the recovery of stolen property and weapons from the accused shortly after the incident attract the presumption under Article 129 Illustration (a) of the Qanun-e-Shahadat Order, 1984?
- Section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance 1979
- Section 411, Pakistan Penal Code 1860
- Article 129 Illustration (a), Qanun-e-Shahadat Order 1984
ORDER
' The applicants have been sent up for trial for an offence punishable under section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance, 1979.
2. As alleged in the F.I.R. Complainant's nephew Ajabdin was grazing the cattle when applicants accompanied by one Abdullah and three unidentified persons armed with weapons caused fist blows and kicks to Ajabuddin and took away cows and buffalos. He informed complainant party who chased the culprits. One of the culprits, Bashir tumbled down and was caught hold of and the gun was snatched from him. Applicant Gul Khan and Gaman were also apprehended and hatchet and Lathi were secured from their possession. Abdullah and unidentified persons managed their escape good and took away two cows. The complainant party succeeded in retrieving two buffalos and one cow. All this happened at 4 p.m. On 1-2-2003 and the culprits, their arms and stolen property were produced at the Police Station Kandhkot at 5-30 p.m. On the same day.
3. I have heard Mr. Nadeem Tonyo, learned counsel for applicants, Mr. Mushtaq Ahmed Kourejo, learned State Counsel and Mr. Muhammad Iqbal Mahar, learned counsel for complainant.
4. Mr. Tonyo submitted that it is not commonly possible to believe that five unarmed persons would catch hold of three armed men. Further relying on Nawab Khan v. State 1986 PCr.LJ 2854 and Rab Nawaz v. State 1988 PCr.LJ 1269, he submitted that the case would at the hest fall within the ambit of section 411, P.P.C.
5. Mr. Kourejo and Mr. Mahar opposed the bail on the ground that the complainant and four witnesses had rushed to the scene and were able to capture the accused, their evidence cannot be discarded at this stage.
6. There is direct allegation that the applicants snatched the cattle on the point of arms, after giving blows to Ajabuddin nephew of the complainant and son after dacoity they were caught hold of with the property robbed. Prima facie, the case can be considered within the meaning of Article 129 Illustration (a) of Qanun-e-Shahadat. It is quite premature to hold that the culprits were simply taking away the stolen property. The names of the applicants are mentioned in the F.I.R. And they were produced at the police station alongwith their arms and the stolen property. The bail plea as such cannot be sustained. However, while dismissing the application, the trial Court is directed to proceed with the case expeditiously and examine the material witnesses as early as possible.