1989 P Cr (PLP)

The brief facts of the bail application are that F.I.R. 210/88, dated 21‑10‑1988 under section 379/411 of the P.P.C. was registered against the petitioner, as he was found to be in possession of a motor‑cycle alleged to have been stolen.

2. According to the complaint, an F.I.R. has been registered to the effect that a motor‑cycle No.BRA‑7896 was recovered from the petitioner during Nakabandi on 16‑12‑1988 at about 2‑15 a.m. The petitioner was interrogated while he was on motor‑cycle. The motor‑cycle was taken into possession as he could not produce the papers. The petitioner had applied for bail before the Ilaqa Magistrate which was rejected on 10‑1‑1989. He applied for bail before the learned Sessions Judge, Bahawalpur, which was also rejected vide order, dated 24‑1‑1989.

3. The learned counsel for the petitioner contends for bail on the following grounds: ‑ (i) That the petitioner was not named in the F.I.R. (ii) That there are no eye‑witnesses of the alleged theft therefore, at the most the case is one under section 411 and not under section 379 of the P.P.C.; (iii) That the petitioner /accused is no longer required by the police and he is in the judicial lock‑up for the last two months. (iv) That the petitioner is young man of 16/17 years of age and is not a previous convict; (v) That there are no recovery witnesses of the locality of the alleged recovery; and (vi) Lastly that the offences charged with are not hit by the prohibitory clause of section 497, Cr.P.C. In this respect the learned counsel for the petitioner relied upon Syed Saifuddin Shah v. The State 1982 P Cr. L J 7921, wherein the bail was allowed to the accused under section 380 on the ground that as the offence alleged was not hit by the prohibitory clause, therefore, the bail should be granted as of right. In his case the Honourable. Court relied upon Haji Wali Muhammad v. The State 1969 S C M R 233 and Ijaz Akhtar v. The State 1978 S C M R 64, wherein too the bail was granted as the offences were not hit by the prohibitory clause of section 497, Cr.P.C. The next authority cited was Muhammad Seem Khan v. The State 1978 P Cr. L J 284, wherein the accused charged with section 411, P.P.C. was granted bail on the same ground as stated above. The next authority cited was Qadir Bux v. The State P L D 1989 Kar. 109, wherein the accused was granted ail as the offences under section 379, P.P.C. and section 14, Offences Against Property (Enforcement of Hudood) Ordinance, 1979, were not hit by the prohibitory clause. The learned counsel also relied upon Muhammad Boota v. The State 1985 P Cr. L J 1378, wherein the accused was bailed out as the provisions of section 103, Cr.P.C. had not been complied with in respect of the alleged recovery effected from the accused, and Ch. Muhammad Bashir v. Ch. Muhammad Zaman and 2 others P L D 1985 SC (AJ&K) 48, wherein it was held that bail should not be refused as punishment.

4. The learned counsel for the State opposes the grant of bail on the ground that there is a witness of the locality regarding the recovery effected, and that another motor‑cycle has been recovered from him at his instance.

5. The learned counsel for the State concedes that there are no witnesses of the alleged theft of the motor‑cycle and, therefore, there may not be a case under section 379, P.P.C. against the accused.

6. In view of the statement of the learned counsel and taking into consideration the facts and circumstances of the case, and placing reliance on the authorities cited by the learned counsel for the petitioner, the accused/ petitioner is admitted to bail in the sum of Rs.30,000 (Rupees thirty thousand only) with one surety in the like amount to the satisfaction of A.C./Duty Magistrate, Bahawalpur. S.A./A‑628/L Bail granted.