2005 PLP 1576 (YLR)

Muhammad Arif son of Muhammad Hayat seeks his post-arrest bail in case F.I.R. No.541 dated 5-11-2002 registered at Police Station Kotwali, District Jhang for offences under sections 380, 411, 458, P.P.C. read with section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance VI of 1979.

2. The allegation as contained in the F.I.R. registered at the instance of Noor Ahmad Akhtar son of Ch. Wali Muhammad was that certain theft had taken place in his medical store during the intervening night of 4/5-11-2002 and according to the complainant on inspection a cash amount of Rs.4,11,537 and certain medicines valuing Rs.6,19,101 had been found missing. A demand draft in the sum of Rs.4,40,000 was also found amiss. Resultantly the instant F.I.R. was recorded.

3. The petitioner was arrested on 11-12-2002 and is in custody eversince. His plea for post-arrest bail did not find favour with the learned Additional Sessions Judge, Jhang, who dismissed his application vide order, dated 15-9-2003. Hence the instant petition.

4. The learned counsel in support of the petitioner's claim for post-arrest bail has argued that the petitioner did not figure anywhere in the F.I.R. that he was introduced subsequently, on the basis of a supplementary statement; that no statement under section 161, Cr.P.C. of any of the seven witnesses mentioned in the F.I.R. has been recorded; that the case of the petitioner was on a better wicket than that of his co-accused Abdul Malik son of Haji Ahmad Khan who had been released on bail as far back as on 14-5-2003; that the entries of drugs had been interpolated by the complainant with a view to claiming insurance amount. He finally argued that the petitioner is in custody for the last over 19 months and the trial has not even commenced and that applicability of section 458, P.P.C. is not made out.

5. Ms. Shahzadi Parveen, the learned counsel for the State has not been able to deny the assertion of the learned counsel regarding non-recording of the statements under section 161, Cr.P.C. of any of the witnesses. While examining the police file she pointed out that certain interpolations appear to have been made for the purpose of inserting the name of the present petitioner in the Zimnies during the course of investigation.

6. I have considered the arguments of the learned counsel for the parties and have carefully gone through the record brought by Sarwar Ali, A.S.-I. Police Station Kotwali, District Jhang.

7. It has been noticed that this application was filed on 12-1-2004 and is pending for the last seven months but the complainant has exhibited total lack of interest in the matter as such the claim of the learned counsel for the petitioner that the complainant was motivated by malice and some insurance claim was involved cannot right away be brushed aside. Even otherwise the only offence which attracts the prohibitory clause of section 497(1), Cr.P.C. i.e. section 458, P.P.C. needs further probe within the meanings of subsection (2) of section 497, Cr.P.C. in the peculiar facts and circumstances of the case. The petitioner is in custody for the last over 19 months and the trial has not even commenced. He cannot be retained in custody indefinitely as a measure of punishment.

8. Resultantly this petition is allowed and the petitioner is admitted to bail provided he furnishes bail bond in the sum of Rs.30,000 with one surety in the like amount to the satisfaction of the learned trial Court. H.B.T./M-891/L Bail granted.