2023 PLP 162 (YLR)

ABDUL HAMEED BALOCH J.

Through this order I intend to dispose of above bail application filed by the applicants in case FIR No. 07 of 2021, registered under sections 365, 34, P.P.C. with Police Station Killa Saifullah on the report of complainant Moulvi Ghulam Nabi.

2. Precise facts of the case are that on 26th May, 2021, case FIR No. 07 of 2021, under above mentioned sections was registered with Police Station Killa Saifullah on the report of complainant Moulvi Ghulam Nabi on the allegation that the accused/ applicants kidnapped him on gun point but after some time the accused persons thrown him near Quaid Chowki.

3. After registration of case the applicants / accused submitted bail application before Sessions Judge, Killa Saifullah, who vide order dated 25th June, 2021 rejected the application, hence this application.

4. The learned counsel for the applicants contended that the applicants have falsely been implicated in the instant case. The investigation of the case has been completed and applicants are no more required for further investigation. The punishment provided for the offence does not fall within the ambit of prohibitory clause of Section 497(1) Cr.P.C. Mere nomination in the FIR is not a ground to disentitle the applicants to bail. Reliance is placed on Khawaja Salman Rafique v. National Accountability Bureau through Chairman PLD 2020 SC 456, Tariq Bashir v. The State PLD 1995 SC 34 and Muhammad Tanveer v. The State PLD 2017 SC 733.

5. Conversely the learned Prosecutor General and counsel for the complainant vehemently opposed the contention of applicants and stated that though the offences do not fall within the ambit of prohibitory clause but gravity of offence have to be taken into account. The applicants cannot claim bail as a matter of right in non bailable offences. The offence does not fall within the prohibitory clause of section 497(1), Cr.P.C does not itself entitle the accused for bail. The applicants are nominated in promptly registered FIR, recovery have been effected from them. The nature of offence is heinous. He prayed for dismissal of the application. He placed reliance on Khan Muhammad v. The State 2014 PCr.LJ 449, Shameel Ahmed v. The State 2009 SCMR 174, Siraj Ahmed v. The State 2010 MLD 165 and Muhammad Saleem Kamboh v. The State 2010 PCr.LJ 419.

6. Heard and perused the record. The record transpires that the complainant got registered FIR alleging therein that the complainant was on his way home in his personal vehicle and when he crossed Moulvi Bakhtiar Adda Killa Saifullah, a white colour surf vehicle chased him and the accused persons duly armed with Kalashnikovs and pistols forcibly kidnapped him, took him towards Quetta and when they reached near Kazza Adda due to gathering of people the accused persons reversed the vehicle towards Killa Saifullah and thrown the complainant. The complainant called levies personnel who apprehended the accused persons near Shakoor Adda.

7. The record reveals that the investigation of the case has been completed. The applicants are no more required for further investigation. The punishment provided for the offence mentioned in the FIR is seven years which does not fall within purview of prohibitory clause of section 497, Cr.P.C. The allegation against the accused is that they had forcibly kidnapped the complainant and after some time let him free. Neither ransom was demanded nor there is allegation that the accused caused harm to the complainant. The contention of the complainant's counsel is that the offence is heinous in nature is no ground. It is settled proposition of law that mere heinousness of offence is not enough to withheld bail. In case Abdul Nafay v. The State 2019 YLR 183, this court held: "Merely the offence being heinous in nature or falling within the ambit of prohibitory clause of S.497(1), Cr.P.C. was not enough to withhold the concession of bail."

8. It is important to remember that bail is not to be withheld as punishment. There is no legal or moral compulsion to keep the people in jail merely on the allegation that they have committed offence punishment with death or transportation for life unless reasonable grounds appear to exist to disclose their complicity. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by the mistaken relief of interim bail granted to him but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run. Reliance is placed on case Manzoor v. The State PLD 1972 SC 81.

9. The Honorable Supreme Court of Pakistan laid down the principle that in case of offence not falling within prohibitory clause of section 497, Cr.P.C bail shall be made and refusal an exception. Under Article 189 of the Constitution of the Islamic Republic of Pakistan, "any decision of the Supreme Court shall, to the extent that it decides question of law or is based upon or enunciates a principle of law, be binding on all other courts in Pakistan." The Honorable Supreme Court of Pakistan in case Muhammad Tanveer v. The State PLD 2017 SC 733 held: "

7. The Supreme Court regulating the grant or refusal of bail has since long laid down binding and guiding principles however, the principle in two cases, out of many are directly attracted to the present case, are mentioned herein once again. In the case of Mansha Khan v. The State (1977 SCMR 449) it was held as follows:- "

S. 497, Cr.P.C. read with section 325/34, P.P.C.

Grievous hurt

Bail

Offence under S. 325, P.P.C. (repealed) being punishable with 7 years' R.I. is not one of such offences where bail is to be refused by reason of prohibition contained in section 497, Cr.P.C.

Held, bail in such cases, hence, not to be refused merely because of offence being non-bailable-- -Any strong reason being absent to refuse bail, Courts below, held, not properly exercised their discretion in refusing bail on basis of number of injuries suffered by victim of attack."

8. In the case of Tariq Bashir v. The State (PLD 1995 SC 34) this Court has taken notice of stock of prevailing circumstances where under-trial prisoners are sent to judicial lock-up without releasing them on bail in non-bailable offences punishable with imprisonment of less than 10 years. It was held that "bail in such offences shall not be refused." This Court took further pains by reproducing the entire provision of section 497, Cr.P. C. and further held that "grant of bail in such offences is a rule and refusal shall be an exception, for which cogent and convincing reasons should be recorded." While elaborating exceptions, albeit it was mentioned by this Court that if there is a danger of the offence being repeated if the accused is released on bail, then grant of bail may be refused like the two Courts below in this case have held but it was further elaborated that such opinion of the Court shall not be founded on mere apprehension and self assumed factors but the same must be supported by cogent reasons and material available on record and not to be based on surmises and artificial or weak premise."

10. There is no two opinions that the accused is entitled for benefit of doubt even at bail stage. In Muhammad Faisal's case, 2020 SCMR 971, it was held: "

It is established principle of law that benefit of doubt can even be extended at bail stage." The judgments relied by the learned counsel for the complainant are distinguished. Each case has its own peculiar facts and circumstances. In view of the above, the instant bail application is allowed. The applicants/ accused Naqeebullah son of Dost Muhammad, Nauroz Khan son of Muhammad Akram and Jehanzaib son of Moula Dad are admitted to bail in case FIR No. 07 of 2021, under sections 365, 34, P.P.C. Police Station Killa Saifullah, subject to furnishing surety in the sum of Rs. 500,000/- (Rupees five hundred thousand) each and PR of the like amount to the satisfaction of Additional Registrar of this court or the trial court. The observations made herein-above are tentative in nature and same shall not influence the merits of the case. SA/137/Bal Bail granted.