2018 PLP 72 (YLRN)

MALIK HAQ NAWAZ, J.

The petitioner has been booked under section 380, P.P.C. vide FIR No.03/2017 registered at Police Station Nomal on 25.5.2017. Initially the FIR was lodged against some unknown culprits. Police started proceeding under section 157, Cr.P.C. and during proceeding arrested the present petitioner on 25.05.2017. On arrested the accused confessed the crime and got some stolen articles recovered.

2. The petitioner filed bail petition No. 13/2017 in the Court of learned Judicial Magistrate Gilgit, which was turned down vide order dated 15-06-2017. The order of learned Judicial Magistrate Gilgit was assailed before Sessions Judge Gilgit by filing bail application No. 12/2017 which also met with the same fate.

3. Being aggrieved from two consecutive refusal of bails by the Courts below the petitioner has come to this Court for concession of bail.

4. The learned counsel for the petitioner submitted that the case is false and the petitioner has been made scapegoat just to fill in the blanks. The learned counsel further contended that the recoveries have been planted upon the petitioner and mandatory provisions of section 103, Cr.P.C. have been violated without any legal justification. Further that Police has wrongly imposed section 75, P.P.C. just to aggravate the story against the petitioner. The offence entails only a punishment of seven years which does not fall within the prohibitory clause of section 497, Cr.P.C. and the case of the petitioner is one of the further inquiry. The learned counsel relied on NLR 2008 Cr. 251, 2013 MLD 145, 2012 YLR 1603 and 2007 PCr.LJ 39.

5. On the other hand the learned Dy. Advocate General opposed the petition and submitted that the petitioner/ accused is habitual offender and does not deserve the concession of bail.

6. The record of the case shows that the petitioner is not nominated in the FIR and he was arrested after carrying out the proceeding under section 157, Cr.P.C. the local Police effected the recoveries in presence of two Police officials and no valid reason has been shown for non association of private witnesses. There is no record regarding the conviction of the accused in any other case. Section 75 of PPC is reproduced as under: Enhancement punishment for certain offences under Chapter XII or Chapter XVII after previous conviction.

Whoever, having been convicted: (a) by a Court in Pakistan of an offence punishable under Chapter XII or Chapter XVII of this Code with [imprisonment] of either description for a term of three years if upwards or (b) [Omitted by Ord. XXXVII of 1981] Shall be guilty of an offence punishable under either Chapters with like imprisonment for the like term, shall be subject for every such subsequent offence to imprisonment for life, or to imprisonment of either description for a term which may extend to ten years.

7. The offence carries punishment of only 7 years which does not fall within prohibitory clause 497, Cr.P.C.. Now it is settled proposition of law that if an offence was not punishable with death, life imprisonment or ten years, the facility of bail should not be denied if there do not exist any exceptional circumstance to refuse the same. The question of imposition of section 75, P.P.C. and violation of section 103, Cr.P.C. have made the case of present petitioner as one of the further inquiry.

8. In these circumstances I grant bail to the applicant on his furnishing two solvent sureties in sum of Rs. 5,00,000/- (five lac) to the satisfaction of trial Court. WA/214/GB Bail granted.