1999 PLP 236 (YLR)

(c) Criminal Procedure Code (V of 1898)‑‑‑ ‑‑‑‑Ss.496 & 497‑‑‑Bail‑‑‑Bail application had to be disposed of under S.496/497, Cr. P. C.‑‑‑Trial Court and the lower Appellate Court had ignored the proviso to 5.497 of Cr.P.C.‑‑‑Omission to give weight to the statutory provisions as well as to the dictum enunciated in the case‑law, was uncalled for. Rana Muhammad Hanif for Petitioners. Rana Liaqat Ali for the State. Date of hearing: 19th February, 1999. Zaheer Babar complainant got recorded F.I.R., No.5, dated 4‑1‑1999 'et Police Station Naulakha Lahore with the allegation that on 25‑12‑1998 he had gone to Railway Station Lahore. He was arriving from Australia Chowk to Seven Up Chowk when one person started walking alongwith him who picked up something from the ground. Another person was going along with him (complainant) who told him that they should ask that person as to what was picked by him. That person told them that there was some amount and they would distribute the same. In the meanwhile another person arrived and told them about the loss of his amount. He was offered that amount who checked the same and told that he had not received his full amount. He started the search. The pocket of Zaheer Babar complainant was also searched. Thereafter, they left. After a little while the complainant counted his amount which was less by Rs.1,

500. Those persons left the place. Afterwards the complainant came to know that Allah Ditta, Ghulam Hussain alias Bundoo petitioners‑accused as well as Fazal ur‑Rehman defrauded him and made theft of his Rs.1,

500. Allah Ditta and Ghulam Hussain alias Bundoo petitioners‑accused were arrested whose bail application has been dismissed by the learned Area Magistrate and by the learned Additional Sessions Judge, Lahore and they have filed this petition before this Court for their admission to bail. They were allowed the interim relief as the file was not produced by the police on the last date of hearing.

2. I have heard the learned counsel for the petitioners as well as the learned State counsel and gone through the record before me. It is the admitted position that the investigation stands concluded and the petitioners have been sent to the judicial lock up and that no case of the instant nature stands registered or is pending against them. Learned counsel for the petitioners relied on Abdul Haye Siddiqui and two others v. The State (1993 PCr.LJ 446 Karachi) as well as Tariq Bashir and five others v. The State and without conceding argued that even if section 379 Pakistan Penal Code is prima facie applicable the acceptance of bail application in a case not falling within prohibitory clause is a rule and its rejection, an exception. He added that it is a case prima facie falling under section 420, Pakistan Penal Code which is bailable and that the petitioners are entitled to be admitted to bail as of right as contemplated under section 496 of the Code of Criminal Procedure. On the contrary learned counsel for the State laid the emphasis that the petitioners are involved in a heinous offence of fraud and their bail was rightly rejected by the learned lower Courts. It was added that the petitioners are not entitled to the discretion of this Court. After making a perusal of the F.I.R. I have to express that Zaheer Babar complainant is also responsible for the creation of the present situation. Even though greed is a curse, there is no end to it. He became a prospective partner of the amount, the distribution of which was offered to him and obviously without justification. As such in view of the prevalent practice of the cases of the instant nature, it can safely be held that it is not a case prima facie falling within the purview of the offence of "theft" falling under section 379 of the Pakistan Penal Code. It is a case of alleged deprivation of amount through fraud prima facie falling under section 420 of the Pakistan Penal Code which is bailable and in a bailable offence it is the right of the accused to be admitted to bail in view of the provisions of section 496 of the Code of Criminal Procedure.

3. Even if the accused are prima facie liable under section 379 the dictum enunciated in the aforesaid rulings has to be followed. The offence under section 379 does not fall within the prohibitory clause. The petitioners were sent to the judicial lock‑up after the conclusion of the investigation. They are not involved in any other case of the instant nature. This being the position, the petitioners are also entitled to be admitted to bail under the proviso to subsection (1) of section 497 of the Code of Criminal Procedure.

4. I would express that a bail application has to be disposed of under section 496/497 of the Code of Criminal Procedure and the proviso to the aforesaid section 497 has been ignored by the learned Area Magistrate and by Mr. Shaukat Ali Khan, Additional Sessions Judge, Lahore who should give weight to the statutory provisions as well as to the dictum enunciated in the case‑law.

5. For what has been said above, I accept this petition and admit both Allah Ditta and Ghulam Hussain alias Bundoo petitioners‑accused to bail in the sum of Rs.10,000 (Rupees Ten Thousand only) each with one surety each in the like amount to the satisfaction of the learned Area Magistrate with the direction to appear before the learned Trial Court on every date of hearing failing which the learned Trial Court may cancel the bail of the absentee accused person(s).

6. This order shall be got executed by the petitioners within a period of 15 days failing which they shall be liable to face the legal consequences. Q.M.H./M.A.K./A‑46/L Bail allowed.