2012 PLP 864 (YLR)

SHAUKAT AZIZ SIDDIQUI, J.

Petitioner Lalzada alias Lal Khan seeks bail in case registered vide F.I.R No.129, dated 2-3-2011, offence under section 381-A read with section 14 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979. The record reveals that later section was substituted by sections 458, 413, 401, 75, P.P.C. at Police Station Margalla, Islamabad.

2. The petitioner approached the "Allaqa Judicial Magistrate" for grant of bail after arrest, but same was declined vide order dated 31-10-2011. Feeling aggrieved, the petitioner approached learned Sessions Judge, Islamabad who entrusted the bail petition to learned Additional Sessions Judge, Islamabad (Muhammad Yar Gondal). The petition for bail after arrest was dismissed by the learned Additional Sessions Judge vide impugned order dated 5-11-2011, Resultantly, petitioner approached this court for grant of bail after arrest.

3. The learned counsel for the petitioner submits that there is no direct evidence against the petitioner to connect him with the commission of the alleged offence, even prima facie. The reasoning advanced by the courts below is not well recognized by the superior courts of the country. During custody nothing incriminating was recovered from the petitioner.

4. On the other hand, the learned standing counsel submits that although there is no admissible material of evidence with the police, still the petitioner is habitual of committing such type of offences and 06 more cases stand registered against him. In rebuttal to it, the learned counsel for the petitioner submitted that in all those cases, the petitioner is on the bail.

5. Before appreciation of the arguments of the learned counsel and perusal of the record, I may reproduce the order of the learned Additional Sessions Judge through which bail was declined to the present petitioner:-- "Perusal of record reveals that petitioner was arrested, investigated and found guilty during investigation. As per memo of identity of place of occurrence accused Lalzada pointed out place, i.e House No.277, St. No.75, Sector G-9/3, Islamabad during his police custody stating that from that place he and his co-accused had stolen the vehicle. During investigation vide Zimni No.15, dated 11-8-2011, the accused had admitted that he had committed 7 occurrences of theft of vehicles and succeeded to take away five vehicles including the vehicle of the complainant of the instant F.I.R. From the above said facts, it transpires that petitioner is an Afghani and is habitual offender and is indulged in car lifting crime and he deserves no leniency with regard to his bail, therefore, the instant bail petition is dismissed".

6. The bare perusal of the above order reveals this fact that the learned Additional Session Judge has placed reliance on the material which has no recognition in the eye of law and same is inadmissible in evidence. It appears that the Additional Session Judge ignored the provisions of Articles 38, 39 and 40 of the "Qanun-e-Shahadat" Order 1984, otherwise the reasoning advanced by the learned ASJ could not have been made basis for refusal of bail.

7. When asked from the learned standing counsel, whether any admissible evidence is available with the prosecution to connect the present petitioner with the commission of the alleged offence? The learned standing counsel very frankly and honestly informed the court that there is no such material. However, he submitted that since the petitioner is involved in 07 cases including the present one, therefore, he may not be granted bail. On enquiry, he informed the court that in all other 6 cases, the petitioner has been granted bail by different courts.

8. It is very strange that the learned Additional Sessions Judge has put reliance on pointation memo (Fard Nishandahi) but failed to go through its contents. On perusal by me it transpires that there is no date on which accused allegedly pointed out the place of occurrence and more interesting aspect is that according to the complainant who is also present in the court, he was residing at House No.227 from where allegedly car was stolen but in the memo pointation has been made of House No.277, St. No.75, G-9/3, Islamabad. This fact alone was sufficient to take the case of the petitioner within an ambit of section 497(2), Cr.P.C, calling for further inquiry and probe.

9. It is well-settled law with the mandate of the dictums of the Superior Courts of the country that mere registration of cases cannot be made basis for refusal of bail when any accused/petitioner succeeds in bringing his case within the ambit of further enquiry and probe as envisaged under section 497(2), Cr.P.C. In this view of the matter, the instant petition is allowed and the petitioner is admitted to bail subject to furnishing of bail bond of Rs.10,00,000 (Ten lac) with one surety of the like amount to the satisfaction of the trial court.

10. All the observations made hereinabove are tentative in nature and shall have no bearing on the final determination of guilt or innocence by the trial court. M.W.A./25/Isl Bail granted.