2000 P Cr (PLP)

Ahmad Ali complainant got recorded .F.I.R. No.802 dated 1-9-1998 at Police Station Saddar Sheikhupura under section 380, Pakistan Penal Code about the theft of one head of buffalo eight days before. The trackers followed the foot-steps of three persons. Raising the suspicion against Sarwar petitioner accused as well as Liaquat and Nazir co-accused, Ahmad Ali complainant reported the matter before the police.

2. Sarwar petitioner-accused was arrested who is said to have led to the recovery of one head of buffalo which was taken into possession vide memo. attested by the witnesses. Section 411, Pakistan Penal Code has been added by the police. The bail application of Sarwar petitioner Vas dismissed by the learned Area Magistrate as -well as by Rana Zahoor-ul-Haque, Additional Sessions Judge, Sheikhupura. Sarwar petitioner-accused moved this Court for his admission to, bail. The matter was taken up on 15-1-1999 and the notice was issued to the State for 29-1-1999 (today). In view of the recovery of the buffalo and offing of the Eid Festival falling on 19-1-1999, Sarwar Petitioner accused was admitted to interim bail.

3. I have heard the learned counsel for the petitioner as well as the learned State Counsel and gone through the record before me. The main contention of the learned counsel for the petitioner is that the recover' is doubtful and that even otherwise due to the recovery of the stolen property the petitioner is entitled to be admitted to bail as the offences under section 380/411, Pakistan Penal Code do not fall within the prohibitory clause. I4e maintained that the proposed relief of bail cannot be denied and the petitioner cannot be detained in the judicial lock-up as a punishment. He referred to the ruling printed as Tariq Bashir and 5 others v. The State PLD 1995 SC 34 wherein it has been enunciated that in non-bailable offences not falling in the prohibitory clause the grant of bail is a rule and refusal, an exception. On the contrary learned State Counsel laid the emphasis that due to the recovery of the buffalo at the instance of Sarwar petitioner-accused both the learned lower Courts have rightly dismissed the bail applications and that he is not entitled to enjoy the concession of bail.

4. At the very outset I would reproduce as under whole of the order passed by Rana Zahoor-ul-Haq, Additional Sessions Judge, Sheikhupura:-- "Present: Counsel for the petitioner. A.D. A. for the State. Recovery has been effected from the petitioner which is sufficient proof to connect the petitioner with the commission of crime. The application of section 411, P.P.C. is made out which is non-bailable. As such, he is not entitled to the, concession of bail which is accordingly declined. Announced (Sd.) Additional Sessions Judge, 5-1-1999 Sheikhupura. "

5. I would express the view that a bail application has to be disposed of within the framework of section 497 of the Code of Criminal Procedure. Keeping in view the maximum punishment of three years under section 411, Pakistan Penal Code it can safely be held that the same does not fall within the prohibitory clause. On the query made by this Court the Police Officer intimated that no case of cattle lifting was already registered or pending against Sarwar petitioner-accused. This being the position the dictum enunciated in the ruling, PLD 1995 SC 34, has to be followed by all the subordinate Courts. It is proper to express that it is specifically held by the Supreme Court in the aforesaid ruling that the bail will be declined only in extraordinary cases which do not fall within the prohibitory clause of the following nature:-- (a) Where there is likelihood of abscondence of the accused; (b) Where there is apprehension of the accused tampering with the prosecution evidence; (c) Where there is danger of the offence being repeated if the accused if released on bail; and (d) Where the accused is a previous convict.

6. No circumstance of the aforesaid nature has been brought to the notice of this Court by the learned State Counsel. In the circumstances I would hold that the very reasoning adopted by the learned Additional Sessions Judge can form the basis of the admission of Sarwar petitioner-accused to bail who has been denied the concession of bail without any legal and factual justification and considerations. In my view the orders passed against him by both the learned lower Courts are devoid of judicial propriety. I, therefore, hold that it is a fit case for the admission of Sarwar petitioner-accused to bail.

7. At this stage, without being disrespectful to Rana Zahoor-ul-Haq, Additional Sessions Judge, Sheikhupura, I have to express my surprise about his perfunctory working. It would be instructive to record that a bail application has to be disposed of within the framework of section 497 of the Code of Criminal Procedure. There is nothing on record as to how the learned lower Courts ignored the provisions of subsection (1) of section 497 of the Code of Criminal Procedure according to which an accused of an offence not falling within the prohibitory clause is entitled to the discretion of the Court for the purpose of his admission to bail. The working of the learned Additional Sessions Judge ignoring the statutory law-and rulings of the superior Courts in such like case, which should be within his knowledge, cannot be approved and it is hoped that in future such a lapse shall not be shown. I am tempted to express that the law has to take its course and the Courts have to keep in mind the shape of scale of justice.

8. Consequently, I accept this application, confirm the interim bail allowed to Sarwar petitioner-accused and admit him to bail in the sum of Rs.10,000 (Rupees ten thousand only) with one surety in the like amount to the satisfaction of the learned Area Magistrate Police Station Saddar, Sheikhupura. This order shall be got executed afresh by Sarwar petitioner-accused within a period of fifteen days from today failing which the same shall become infructuous. N.H.Q./S-302/L Bail allowed.