PLJ 2023 Cr.C. (Note) 223
[Lahore High Court, Multan Bench]
Present: Sadiq Mahmud Khurram, J.
MUHAMMAD AMIR YOUSAF--Petitioner
versus
STATE and another--Respondents
Crl. Misc. No. 2895-B of 2023, decided on 9.5.2023.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Pakistan Penal Code, (XLV of 1860), Ss. 420, 379 & 411--Bail after arrest, grant of--Allegation of--This is a bail after arrest and only a tentative assessment is permissible at this stage--The allegations as against petitioner are that he withdrew an amount of Rs. 14,500/-from account of complainant of case through use of ATM machine--it is necessary that person doing transaction must know about specific Pin Code needed to work automated teller machine (ATM) for purpose of withdrawing cash through a card, however, in present case, complainant of case never stated that she also disclosed to petitioner, Pin Code needed to work automated teller machine (ATM) for purpose of withdrawing cash and without said Pin Code, how petitioner was able to access account of complainant and withdraw cash has not been explained--This fact alone makes case against petitioner requiring further probe which shall be done by learned trial Court--Even otherwise, offences u/Ss. 420 and 471, P.P.C. are bailable in nature as per Schedule II of Code of Criminal Procedure Code 1898 while offence under Section 468, P.P.C. does not fall within parameters of restraining clause of Section 497(1), Code of Criminal Procedure Code 1898--Grant of bail is a right and refusal is an exception in such like cases--The prosecution Is not equipped with any evidentiary material to bring case of present petitioner within exceptions for refusing grant of bail to petitioner--The petitioner is a previous non-convict--During investigation of case, petitioner was arrested on 29.03.2023 and is since in custody--The investigation qua him is complete and his person is no more required for further investigation, therefore, his continued incarceration would not serve any beneficial purpose at this stage. [Para 4] A, B, D
PLD 1995 SC 34.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(1)--Prohibitory clause--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, principle to be deduced from this provision of law is that non-bailable offences falling in second category (punishable with imprisonment for less than ten years) grant of bail is a rule and refusal an exception--So bail will be declined only in extraordinary and exceptional cases, for example:-
(a) Whether there is likelihood of abscondence of accused:
(b) Where there is apprehension of accused tampering with prosecution evidence;
(c) Where that is danger of offence being repeated if accused is released on bail; and
(d) Where accused is a previous convict. [Para 4] C
2009 SCMR 1488, 2011 SCMR 1708 & PLD 1997 SC 545.
Mr. Muhammad Faisal Bashir, Advocate for Petitioner.
Mr. Sadiq Rehman, Additional Prosecutor General for State.
Date of hearing: 9.5.2023.
Order
Through this petition filed under Section 497, Cr.P.C. the petitioner namely Muhammad Amir Yousaf seeks post-arrest bail in the case F.I.R No. 293 of 2023, dated 28.03.2023, registered in respect of offences under Sections 420, 379 and 411, P.P.C. at the Police Station City Khanewal, District Khanewal.
2. The allegations as against the petitioner namely. Muhammad Amir Yousaf, culled from the evidentiary material produced before the Court are that he withdrew an amount of Rs. 14,500/-from the account of the complainant of the case through the use of the ATM machine.
3. I have heard the learned counsel for the petitioner, the learned Additional Prosecutor General and have gone through the record of this case with their able assistance.
4. This is a bail after arrest and only a tentative assessment is permissible at this stage. The allegations as against the petitioner namely Muhammad Amir Yousaf are that he withdrew an amount of Rs. 14,500/-from the account of the complainant of the case through the use of the ATM machine. An automated teller machine (ATM) is an electronic banking outlet that allows customers to complete basic transactions without the aid of a branch representative or teller. Anyone with a credit card or debit card can withdraw the cash available in his account through the use of an automated teller machine (ATM), however, for completing the transaction it is necessary that the person doing the transaction must know about the specific Pin Code needed to work the automated teller machine (ATM) for the purpose of withdrawing the cash through a card, however, in the present case, the complainant of the case never stated that she also disclosed to the petitioner, the Pin Code needed to work the automated teller machine (ATM) for the purpose of withdrawing the cash and without the said Pin Code, how the petitioner was able to access the account of the complainant and withdraw cash has not been explained. This fact alone makes the case against the petitioner requiring further probe which shall be done by the learned trial Court. Even otherwise, the offences under Sections 420 and 471, P.P.C. are bailable in nature as per Schedule II of Code of Criminal Procedure Code, 1898 while offence under Section 468, P.P.C. does not fall within the parameters of restraining clause of Section 497(1), Code of Criminal Procedure Code 1898. Grant of bail is a right and refusal is an exception in such like cases. 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 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). The august Supreme Court of Pakistan, in the case of “Imtiaz Ahmad and another vs. The State” (PLD 1997 SC Page 545), has held as under:
“Even in cases where a person is accused of non bailable offence and the case does not fall within the prohibitory clause, meaning thereby that the punishment prescribed for the offence is neither death nor imprisonment for life or 10 years, the grant of bail in such cases is a rule and refusal an exception.”
The prosecution is not equipped with any evidentiary material to bring the case of the present petitioner within the exceptions for refusing grant of bail to the petitioner. The petitioner is a previous non-convict. During the investigation of the case, the petitioner was arrested on 29.03.2023 and is since in custody. The investigation qua him is complete and his person is no more required for further investigation, therefore, his continued incarceration would not serve any beneficial purpose at this stage.
5. For the foregoing reasons, the petition in hand is accepted, and the petitioner is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs. 400,000/-(rupees fou hundred thousand only) with two sureties, each in the like amount, to the satisfaction of the learned trial Court.
6. It Is clarified that the observations enumerated are absolutely tentative in nature and restricted only to the extent of this particular petition, having no nexus and relevance with the trial, which shall be concluded quite independently and purely on men. Additionally, a direction is issued to the learned trial Court to conclude the trial of the case expeditiously, preferably within a period of six months from the receipt of the certified copy of this order. It is made clear that if the petitioner or any person acting on his behalf causes delay in the conclusion of the trial or if the petitioner absents himself from the learned trial Court or if the petitioner misuses the concession of bail in any manner, the learned trial Court would also be at liberty to cancel his bail, in accordance with the law
(A.A.K.) Petition accepted
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