2008 P Cr (PLP)

MUHAMMAD ALAM KHAN, J.

Hazart Wali petitioner has filed the instant application for bail as his request for bail has been refused by Judicial Magistrate No.7 Peshawar as well as Muhammad Asim Imam, Additional Sessions Judge-III, Peshawar.

2. Arbab Abdul Ghafoor, Advocate counsel for the petitioner has submitted written arguments, which were perused. Mr. Obaidullah Anwar, Additional Advocate General was heard at length on behalf' of the State.

3. Brief facts of the case are that Haji Muhammad Taqi son of Haji Gul Muhammad, resident of Haji. Camp City Town Peshawar lodged an F.I.R. in Police Station Chamkani, District Peshawar on 17-6-2007 at 11-00 hours to the effect that he is the owner of Trailer No.LSB-9486 and one Khan Muhammad son of Haji Yaseen is a joint owner in this trailer as they had purchased the same on partnership basis. The trailer is being plied by Khan Muhammad driver. On 15-6-2007 the driver had parked the trailer at 12-00 noon at Admore Petrol Pump situated on G.T. Road Peshawar. The next morning the driver informed the complainant that the trailer is missing and the complainant charged Khan Muhammad the co-partner for the commission of the offence and initially the case was registered under section 406, P.P.C. for criminal breach of trust. Subsequently on 25-6-2007 the complainant recorded his statement under section 164, Cr.P.C. and charged the accused for the commission of the offence and consequently the offence was changed from section 406 to sections 381-A/411, P.P.C.

3. The accused-petitioner submitted application to the Judicial Magistrate, Peshawar for his release on bail, which was rejected on 3-10-2007. Then he moved an application before Additional Sessions Judge-III, Peshawar, which too was rejected on 1-11-2007. Now the petitioner has moved the present application for his release on bail.

4. It is apparent from the record that the complainant has initially charged a co-partner for the commission of the offence and after ten days has changed the story and charged the present accused-petitioner.

5. Without touching the merits of the case so that it may not prejudice the case of either party, offence under section 381-A, P.P.C. carries a maximum sentence of 7 years while under section 411, P.P.C. maximum sentence is three years. Although section 411 has been included in the F.I.R. subsequently and it finds mention in the application to the learned Additional Sessions Judge, but both the sections of law involve a sentence of less than ten years, which does not come within the prohibitory clause of section 497, Cr.P.C. and furthermore the case is of further inquiry into the guilt of accused-petitioner. The accused-petitioner has made out a case for bail because in such like cases the grant of bail is a rule and its refusal is an exception.

6. In view of the facts and circumstances narrated above, I accept this bail application and consequently Hazrat Wali is released on bail in the sum of Rs.50,000 with two sureties each in the like amount to the satisfaction of Illaqa Judicial Magistrate, who shall see that the sureties are local and men of means. H.B.T./201/P Bail granted.