IMRANULLAH and others vs THE STATE and another
This consolidated order arose from two separate post-arrest bail applications stemming from the same First Information Report registered under Sections 457, 324, 148, and 149 of the Pakistan Penal Code 1860, concerning the cutting of electric cables from a factory transformer. The petitioners contended that there was delay in lodging the FIR, that the offence attracted Section 379 PPC which does not fall within the prohibitory clause of Section 497 Cr.P.C., and that they were falsely implicated. The State opposed the bail citing adequate incriminating material. The High Court accepted the bail petition of one petitioner, finding that co-accused had exonerated him in their Section 161 Cr.P.C. statements and he was no longer required for investigation. However, the Court dismissed the bail petition of the remaining co-accused, holding that direct involvement and adequate material existed against them. The Court laid down that bail cannot be claimed as an absolute right in offences not falling within the prohibitory clause without evaluating the gravity of the offence and the prosecution material.
- Whether bail must automatically be granted in an offence merely because it does not fall within the prohibitory clause of Section 497 Cr.P.C.?
- Can a court refuse bail in offences not punishable with death, imprisonment for life, or ten years upon assessing the gravity of the offence and the prosecution material?
- Whether an accused is entitled to bail where co-accused exonerate him in their statements under Section 161 Cr.P.C. and he is no longer required for further investigation?
- Section 457, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 379, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
- Section 161, Code of Criminal Procedure 1898
' By this single order, I intend to dispose of Criminal Miscellaneous Bail No.97 of 2004 and Criminal Miscellaneous Bail No.110 of 2004 as both the petitions are the outcome of one and the same F.I.R.
No.7, dated 20-1-2004 registered at Police Station, Pezu for offences under sections 457/324/148/149, P.P.C.
2. The petitioners alongwith one Nazar Gul and two known persons are accused of having, on 20-1- 2004 at 0515 hours, cut electric cables with axes from transformer installed in the premises of Lukky Cement Factory, Pezu, District Lakki Marwat. The report was lodged by Shadi Khan, Deputy General Manager, B&A, Lukky Cement Factory in writing the same day wherein he charged the petitioners alongwith one Nazar Gul and two unknown persons for the commission of offence. After having been refused bail from the two Courts below vide orders, dated 19-2-2004 and 12-3-2004 respectively, petitioners Imtiaz, Farmanullah alias Farmaka and Shaukat alias Katoo have moved instant petition for grant of bail while petitioner Imranullah seeks bail on refusal of the same by two Courts below vide orders, dated 9-2-2004 and 24-2-2004 respectively.
3. Mr. Muhammad Waheed Anjum, Advocate for petitioner Imranullah and Mr. Abdur Rashid Khan, Advocate for petitioners Imtiaz, Farmanullah alias Farmaka and Shaukat alias Katoo raised the point of delay in lodging of the F.I.R. And the presence of reasonable grounds to believe that the petitioners had been falsely associated with the crime. They further contended that facts and circumstances of the case, attract the provisions of section 379, P.P.C., the punishment of which does not fall within the prohibitory clause of section 497, Cr.P.C., as such, the petitioners are entitled for concession of bail. In support of the pleas, they relied on Ghulam Habib, v. The State (PLD 1994 Peshawar 84) and Ali Akbar, v. Esa Khan and another (2003 YLR 1284).
4. Mr. Muhammad Sharif Chaudhary. Learned Deputy Advocate General for the State, on the contrary, opposed the grant of bail maintaining that prosecution is in possession of adequate material to connect the petitioners with the commission of offence which is heinous in nature and bail has been declined to the petitioners for valid reasons.
5. Pttitioner Imranullah is in Jail ever since his arrest on 21-1-2004. He has not been named by his co-accused Imitaz, Farmanullah alias Farmaka and Shaukat alias Katoo in their statements recorded under section 161, Cr.P.C. Wherein they have taken the entire responsibility on their shoulders exonerating petitioner Imranullah. The investigation is almost complete and petitioner Imranullah is no more required for the purpose of investigation. Criminal Miscellaneous Bail No.97 of 2004 is accepted and petitioner Imranullah is ordered to be released on bail provided he furnishes bail bonds in the sum of Rupees two lac with two sureties each in the like amount to the satisfaction of Illaqa/Duty Judicial Magistrate, Lakki Marwat.
6. Adverting to the case of petitioners Imitaz, Farmanullah alias Farmaka and Shaukat alias Katoo, I find that they stand directly involved in the case and prosecution is in possession of adequate material connecting them with the commission of offence.
7. It is not a rule of law that in each and every case, which is not punishable with death, imprisonment for life or ten years, bail must be granted to an accused without considering the gravity of the offence. If that would have been the intention of the legislature, then such an amendment would have been introduced in the law by the law makers through legislation. Th.
Courts cannot be oblivious to the material collected by the prosecution and after looking into it and making tentative assessm ent of evidence, if the Court comes to the conclusion that a prima facie case is made out, Court can refuse bail even in case which are not punishable with death, imprisonment for life or ten years.
8. In view of the above, finding no force in Criminal Miscellaneous Bail No.110 of 2004, the same is hereby dismissed.
9. The observations made above are tentative in nature and relate to the order in hand only.