2012 PLP 1971 (MLD)

SAYYED MAZAIIAR ALI AKBAR NAQVI, J.

Through the instant petition, the petitioner has sought for his post arrest bail in case F.I.R. No.341 of 2012, dated 23-3-2012, offence under sections 381-A, 411, P.P.C. registered with Police Station, Madina Town, Faisalabad.

2. Prosecution story, in brief, as per contents of the crime report is that on 23-3-2012 at 5-00 p.m. some unknown accused person committed theft of car bearing Registration No.4265/LRQ of the complainant.

3. Learned counsel for the petitioner submits that the petitioner is innocent and has falsely been roped in the instant case by the complainant against the actual facts and circumstances with ulterior motives. It is argued that the petitioner is neither named in the FI.R. nor any supplementary statement has been recorded in the instant case, rather the police after arresting him has planted recovery of the vehicle against the petitioner. It is argued that in such circumstances the case against the petitioner becomes one of further inquiry falling within the ambit of section 497(2), Cr.P.C. Moreover, the offences alleged against the petitioner do not fall within the prohibition contained in section 497(1), Cr.P.C. Learned counsel submits that no identification parade has been conducted to ascertain involvement of the petitioner in the instant case. It is argued that earlier the petitioner was admitted to post arrest bait by the learned Judicial Magistrate, Faisalabad vide order dated 3-7-2012, but subsequently his bail was cancelled by the learned Sessions Judge, Faisalabad, vide order dated 4-7-2012 on the application moved by the complainant. Learned counsel submits that the petitioner is previous non-convict and non-record holder and investigation of the instant case being complete, he is no more required by the police for further investigation and as such no useful purpose would be served by his further detention in jail.

4. On the other hand, learned Deputy Prosecutor-General assisted by learned counsel for the complainant has opposed the contentions advanced by the learned counsel for the petitioner. It is argued that recovery of the vehicle from the petitioner is sufficient to connect him with the commission of the offence alleged against him.

5. Arguments advanced from both sides have been heard. Relevant record available on the perused.

6. Neither the petitioner is named in the crime report nor any supplementary statement has been recorded in the instant case. Moreover, no test identification parade has been held in the instant case. The Investigating Officer present before the Court states that on spy information the petitioner was arrested in the instant case and after his arrest the petitioner got recovered the vehicle from Khaki Stadium. Earlier the petitioner was admitted to post arrest bail by the learned Judicial Magistrate, Faisalabad, but subsequently his bail was cancelled by the learned Sessions Judge, Faisalabad vide order dated 4-7-2012. In such circumstances the case against the petitioner becomes one of further inquiry falling within the ambit of section 497(2), Cr.P.C. The evidentiary value of the recovery of the vehicle would be determined by the learned trial court during trial after recording of evidence. Even otherwise maximum sentence of offence against the petitioner is not more than seven years as such the same is not covered under subsection (1) of section 497, Cr.P.C. and as has been held in the case of Tariq Bashir v. The State (PLD 1995 SC 34), in cases not punishable with death, transportation of life or 10 years' imprisonment, grant of bail is rule and refusal an exception. Similar view was affirmed by the august Supreme Court of Pakistan in the case of Riaz Jafar Natiq v. Muhammad Nadeem Dar and????????? others (2011 SCMR 1708). The petitioner is behind the bars since the date of his arrest and investigation being complete, he is no more required by the police for further investigation and in such circumstances no useful purpose would be served by his further detention in jail.

7. In sequel to above facts and circumstances, I am persuaded to accept this petition. Resultantly, the petitioner is admitted to bail after arrest subject to his furnishing bail bonds in the sum of Rs.1,00,000 with one surety in the like amount to the satisfaction of learned trial court.

8. Before parting with the order, this Court has observed that the petitioner was earlier admitted to post-arrest bail by the learned Magistrate, Faisalabad vide order dated 3-7-2011 and the cancellation of bail was procured in a slipshod manner by the complainant on the very next day when even the petitioner was not released from jail. The learned Sessions Judge, Faisalabad while cancelling the bail of the petitioner has acted with extreme high-handedness thereby misusing his judicial powers to the climax. The Judicial Officer of such rank especially heading the district judiciary, who even otherwise has to set an example for the judicial officers performing their duties in the district, is not presumed to have acted in such a hasty and reckless manner, who even had not bothered to provide an opportunity of audience to the present petitioner before cancelling his bail. It is not only the basic principle of Islam rather constitutional/guaranteed right that before passing any adverse order, the person who would be straightway affected with the same, should be afforded a fair opportunity to advance his point of view. I am taking the opportunity to quote the wisdom of august Supreme Court of Pakistan rendered in its landmark judgment in the case of Pakistan and others v. Public at Large and? others (PLD 1987 SC304); wherein it has been held that to afford an opportunity of hearing is part and parcel of every statute irrespective of the fact whether embodied therein or not. Relevant portion of? which reads as under:

"It is common principle which governs the administration of justice in Islam that in case of liability with penal or quasi-penal consequences and/or deprivation of basic rights a notice as well as an opportunity of hearing, are of absolute necessity. This by itself has to be recognized as a basic light." In this background it can simply be held that the Sessions Judge is either incapacitated or has no strength to face pressure, who is not even aware with the basic principles on the point of "considerations for grant of bail and cancellation thereof" laid down by august Supreme Court of Pakistan in its familiar judgment in the case of Tariq Bashir and 5 others v. The State (PLD 1995 SC 34).

9. Registrar of this court is directed to place the above findings in the personal file of the Judicial Officer so That the matter may be taken up on administrative side. MWA/Z-27/L????????????????????????????????????????????????????????????????????????????????????????????????? Bail granted.