Hakim Hussain etc. vs State etc.

Form No: HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT

MULTAN BENCH MULTAN

JUDICIAL DEPARTMENT

Crl. Misc. No. 6955-B of 2018

Hakim Hussain, etc. VS. The State, etc.

S.No. of order/ Date of order/ Order with signatures of Judge, and that of parties or counsel, where proceeding proceeding. necessary.

11.01.2019 Sh. Muhammad Rahim, Advocates for the petitioner. Mr. Sarfraz Ahmad Khan Khichi, Deputy Prosecutor General with Aslam Javaid, ASI.

Rana Muhammad Shakeel, Advocate for the complainant.

Hakim Hussain and Qasim Hussain, petitioners, seek their release on post arrest bail in case FIR No. 258 of 2018 dated 01.10.2018, registered at police station Raja Ram, District Multan in respect of offences under sections

419,420,468,471,381 PPC.

2.The allegation as against the petitioners, as culled from the evidentiary material available before the Court, is that they, after stealing documents belonging to the complainant, got the tractor as owned by him registered in their name and then also filed an application under section 22- A Cr.P.C. seeking registration of a case of theft against the complainant himself.

3.Parties heard. Record perused.

4.According to the prosecution story itself, the tractor in question was purchased on installments and there was a dispute regarding the ownership. The complainant had himself filed a declaratory suit as against the petitioner Hakim Hussain even prior to the registration of the case, which is still pending adjudication. As observed above, civil litigation has already commenced in between the parties, as such this case requires

Crl. Misc. No. 6955-B of 2018 2

evidence with regard to the title of the ownership in respect of the tractor. Furthermore, during the investigation, the statement of the Excise and Taxation Officer Lodhran was recorded under section 161 Cr.P.C. on 15.10.2018 to the effect that the said tractor was registered in the name of the petitioners in accordance with law . The said registration has not been cancelled as yet. Furthermore the tractor itself is in the possession of the complainant himself. Besides, no exceptional circumstances appear in this case to withhold bail to the petitioners. The petitioners are behind the bars since their arrest on 03.10.2018 and the investigation has been finalized, and the allegations against them are yet to be proved through evidence in the court, as such, further detention of the accused persons in this case at this stage would not serve any fruitful purpose. Admittedly, the petitioners are previous non- convicts. The trial has not seen any fruitful progress as yet. Undeniably, case of the prosecution is entirely based upon the documentary evidence and relevant record has already been collected and seized by Investigating Officer and same is in the custody of the prosecution, hence, there is no apprehension of tampering with prosecution evidence. Even otherwise, the offences under sections 420 and 471, P.P.C. are bailable in nature, while offences under section 468,381 and 419 P.P.C. do not fall within the parameters of restraining clause of section 497(1), Cr.P.C. It is settled that while dealing with the question of bail, court should consider the minimum aspect of the sentence provided for the alleged offence in the schedule. In this respect, I am supported with the case of “Tariq Bashir and 5 others v. The State” reported as PLD 1995 SC 34, wherein it has been mentioned that Section 497, Cr.P.C. divided non-bailable offences into two categories (1) offences punishable with death, imprisonment of life or imprisonment for ten years (2) offences punishable for imprisonment of less than ten years, the principle to be deduced from this provision

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of law is that non-bailable offences falling in the second category (punishable with imprisonment for less than ten years) the grant of bail is a rule and refusal an exception. So the bail will be declined only in extraordinary and exceptional cases, for example:--

(a)Whether there is likelihood of abscondence of the accused;

(b)Where there is apprehension of the accused tampering with the prosecution evidence;

(c)Where that is danger of the offence being repeated if the accused is released on bail; and

(d)Where the accused is a previous convict.

This principle has also been reiterated in the case of “ Zafar Iqbal v. Muhammad Anwar and others” (2009 SCMR 1488), Riaz Jafar Natiq v. Muhammad Nadeem Dar and others ( 2011 SCMR 1708). Learned Deputy Prosecutor General has submitted that the petitioners were not involved in any other case of similar nature.

5.For the foregoing reasons the petition in hand is allowed and petitioners are admitted to post arrest bail subject to their furnishing bail bonds in the sum of Rs.100,000/- (Rupees One hundred thousand Only) with one surety each in the like amount to the satisfaction of learned trial court.

6.Needless to mention that any observations made in the above order are tentative in nature and shall not influence the trial court.

(Sadiq Mahmud Khurram)

JUDGE

RAHEEL

APPROVED FOR REPORTING