Find a Lawyer

Criminal Miscellaneous No.500-B of 2014, decided on 21st August, 2014.

----S. 497(2)--- Penal Code (XLV of 1860), Ss. 420, 468, 471, 419 & 34---Cheating and dishonestly inducing delivery of property, forgery for the purpose of cheating, using as genuine a forged document, cheating by personation, common intention---Bail, grant of---Further inquiry---Only material implicating accused, was the statement of co-accused---No evidence or incriminating material was available on record to the extent of accused---Only offence, which was attracted to the extent of accused was under S.420, P.P.C., which fell under the purview of non-prohibitory clause of S.497, Cr.P.C.---Whether accused had a role in the 38 files recovered from co-accused, needed further probe---Continued custody of accused was not likely to serve any beneficial purpose---Where offences fell within the non-prohibitory clause, the granting of bail had to be considered favourably as a rule, but could be declined in exceptional cases---Accused was entitled to bail, in circumstances. Raja Muhammad Younus v. The State 2013 SCMR 669; Zafar Iqbal v. Muhammad Anwar and others 2009 SCMR 1488; Subhan Khan v. The State 2002 SCMR 1797; Tariq Bashir and 5 others v. The State PLD 1995 SC 34; Riaz Jafar Natiq v. Muhammad Nadeem Dar and others 2011 SCMR 1708 ref. Sardar Abdul Raziq Khan for Petitioner. Malik Zahoor Awan, Standing Council and Tehseen, S.-I. with record for the State.

The petitioner Mirza Saeed Akhtar Baig son of Muhammad Sadiq has sought post arrest bail in case, FIR No.138, dated 6-4-2014, registered under sections 420, 468, 471, 467, 419, 34 of Pakistan Penal Code, 1860 (hereinafter referred to as "P.P.C.") at Police Station Aabpara, Islamabad. 2. Brief facts are that on complaint of Mansoor Ahmed S.I./C.I.A. the above said FIR had been registered, wherein it is alleged that he received spy information that a gang of people is engaged in preparing bogus documents/files of Model Village Kuril Shehr at Liberty Market Aabpara, Sector G-6, and Sitara Market, Sector G-7 Markaz Islamabad, upon which raiding party was constituted and raid was conducted. As a result whereof, Waheed Anwar was arrested from Aabpara Market and bogus files being prepared by him along with other articles were recovered and taken into possession. Hence, this FIR. 3. Learned counsel for the petitioner contended that present petitioner was not nominated in the FIR; the petitioner was implicated on the statement of accused Waheed Anwar and, thereafter arrested on 14-7-2014; there is no evidence or material available on the record connecting the petitioner with the commission of the offence; the C.I.A. police have no lawful authority to conduct raid and register the case; the offences under sections 467, 419, 468 and 471, P.P.C. are not made out to the extent of the petitioner, whereas, section 420, P.P.C. is bailable and does not fall within the prohibitory clause contained in section 497, Cr.P.C.; the petitioner is previously non-convict; that the case of petitioner is one of further inquiry; investigation is complete and the petitioner is no more required for the purposes of investigation; petitioner remained on physical remand for seven days but no incriminating evidence is available on record to the extent of petitioner; there is no evidence or material on record to the extent of the petitioner except the statement of the main accused; even statement of main accused is hit by Article 38 of the Qanun-e-Shahadat Order, 1984, in this regard reliance has been placed on 2013 SCMR 669; no affectee has come forward nor any such statement has been recorded during investigation; hence he prays for enlarging the petitioner on bail. 4. On the other hand, learned Standing Counsel contends; it is correct that the petitioner was implicated and thereafter arrested on the basis of statement made by the main accused during the period of remand; states that the petitioner made a statement recorded in zimni No.27, dated 17-7-2014 that he had dealt with files relating to "Model Village Kurri Shehr", however, admits that no one has come forward to give any evidence to the extent of the petitioner; admits that in the light of statement recorded in zimni No.27, dated 17-7-2014, only section 420 of P.P.C. is attracted to the extent of the petitioner, which offence falls in the non-prohibitory clause; admits that in the light of the investigation and the statement of the petitioner, other offences mentioned in the FIR are not attracted to his extent; lastly states that the Challan has been submitted on 1-8-2014. 5. After giving careful consideration to the arguments of the learned counsel, findings of this Court are as follows: 6. It is noted that the only material implicating the petitioner is the statement of the co-accused. Admittedly, no evidence or incriminating material is available on record to the extent of the petitioner. It has been held by the honourable Supreme Court in the case of "Raja Muhammad Younus v. The State" (2013 SCMR 669), that in terms of Article 38 of the Qanun-e-Shahadat Order, 1984, "admission of an accused before police cannot be used as evidence against the co-accused". Moreover, it is admitted that even on the basis of the statement of the petitioner, recorded in Zimni No.27, dated 17-7-2014, only section 420, P.P.C. is attracted to his extent. Other offences mentioned in the FIR not being relevant. Section 420, P.P.C. falls under the non-prohibitory clause of section 497, Cr.P.C. Whether the present petitioner has a role in the 38 files recovered from the co-accused, needs further probe. His continued custody is not likely to serve any beneficial purpose at this stage, whereas, admittedly, the only offence which is attracted to his extent is section 420, P.P.C., falling in the non-prohibitory clause of section 497, Cr.P.C. 7. By now the law and principles for granting bail in such cases are well settled. It is important to note that in the case of "Zafar Iqbal v. Muhammad Anwar and others" (2009 SCMR 1488), a larger Bench of the honourable Supreme Court has elucidated the principles for considering the grant of bail, where offences fall within the non-prohibitory clause. In the light of the said principles it has been held that where offences fall within the non-prohibitory clause, the granting of bail has to be considered favourably as a rule, but may be declined in exceptional cases. Examples, though not exhaustive, of such extraordinary and exceptional cases have further been listed as follows:-- (i) Where there is likelihood of abscondance of the accused; (ii) Where there is apprehension of the accused tampering with the prosecution evidence; (iii) Where there is danger of the offence being repeated, if the accused is released on bail; and (iv) Where the accused is a previous convict. 8. The Hon"ble Supreme Court of Pakistan reaffirmed and reiterated the principles as laid down in the earlier judgments of Subhan Khan v. The State (2002 SCMR 1797) and Tariq Bashir and 5 others v. The State (PLD 1995 SC 34). The said principles have been consistently followed. Reliance may also be placed on the case of Riaz Jafar Natiq v. Muhammad Nadeem Dar and others (2011 SCMR 1708). 9. This Court is, therefore, of the view that the petitioner is entitled to bail. 10. In the circumstances as mentioned above, this petition is allowed and the petitioner is admitted to bail, subject to furnishing bail bonds in the sum of Rs. 200,000 (Rupees Two Hundred Thousand) with one surety in the like amount to the satisfaction of learned trial Court. Needless to mention that this is tentative assessment, which shall not affect trial of this case in any manner. HBT/15/Isl. Bail granted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.