2005 P Cr (PLP)

The petitioner seeks bail after arrest in case F.I.R. No.98 of 2004, dated 10-8-2004 under sections 399/402/170/171, P.P.C. registered with Police Station "B" Division, D.G. Khan.

2. Brief facts of the case as narrated by the complainant Ali Muhammad, S.-I./S.H.O., Police Station "B" Division, D.G. Khan are that on the day of occurrence he was present along with police party at Committee Golai Chowk. He received spy information that dacoit Khalid Khalil who is required in many cases of dacoity wearing police uniform armed with kalashnikov, is present near the Company Bagh for the purpose of dacoity. The raid was conducted and the police party overpowered three accused persons namely Munawar Iqbal (petitioner), Muhammad Sarfraz, Muhammad Khalid; who were arrested red-handed at the spot, whereas, two unidentified co-accused of the petitioner fled away from the place of occurrence. During the search of the car one uniform of police, one kalashnikov and 29 live bullets were recovered. Hence, this case.

3. It is argued by the learned counsel for the petitioner that he has been falsely roped in the case. The whole proceedings conducted by the police are based on mala fides and is outcome of vindictive attitude of local police. As per story narrated in the F.I.R. sections 170/171, P.P.C. are not attributed to the petitioner. The allegation against the accused that they were armed with deadly weapons, even if could be taken as true, falls under section 402, P.P.C. and is not covered by prohibitory clause of section 497, Cr.P.C. The allegation of offence under section 399, P.P.C. needs further probe and consideration, because at the spot only two persons were arrested. It is recorded that other three managed to run away. There is no proof showing that the petitioner was preparing to commit dacoity. The petitioner was not found to be wearing police uniform and fake recovery of police uniform is planted. The petitioner is behind the bars for the last 8 months. Relying 1999 MLD 1840, it is argued that mere presence of the petitioner along with his co-accused does not constitute an offence under section 399 or section 402, P.P.C. He is also relying upon 2003 PCr.LJ 1839 argues that mere assembly at a place while armed with lethal weapons with the intention to commit dacoity, even if, may be taken as true, the same offence falls under section 402, P.P.C. The offence under this section is not covered by the prohibitory clause of section 497, Cr. P. C.

4. Conversely learned counsel for the State opposed this bail petition on the ground that petitioner is named in the F.I.R. He was arrested at the spot, where he was present with other co-accused Khalid Bilal and Khalid. The other 3 co-accused managed to run away and police uniform was recovered from the petitioner. Incomplete challan has been submitted in the Court on 10-9-2004 which is still awaiting trial.

5. I have carefully considered the submissions made by both learned counsel for the parties. Asper the allegations in the F.I.R. and considering all the contentions, it appears that the material available with the prosecution does not show, whether they had made any pre-preparation for committing offence as contemplated under section 399, P.P.C. Mere presence of the petitioner along with his co-accused at a specific place does not constitute an offence under section 399, P.P.C. and section 402, P.P.C. The case of the petitioner is covered under subsection (2) of section 497, Cr.P.C. requiring further inquiry into his guilt. He is not a previous convict and there is no likelihood of his trial to commence in the near future.

6. The bail petition is accepted and petitioner is admitted to bail provided he furnishes bail bonds in the sum of Rs.50,000 with one surety in the like amount to the satisfaction of learned trial Court. N.H.Q./M-1171/L Bail allowed.