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Petitioner: MUHAMMAD ASIF VS Respondent: StateHonorable Justice Nadeem Azhar SiddiqiMuhammad Nasirullah Siddiqui
2010 M L D 1724
2010 M L D 1724
[Karachi]
Before Nadeem Azhar Siddiqi, J
MUHAMMAD ASIF---Applicant
Versus
THE STATE---Respondent
Criminal Bail Application No.330 of 2009, decided on 15th April, 2009.
Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), Ss.380/381/34---Theft in dwelling house and theft by clerk or servant---Bail, refusal of---Name of accused had been mentioned in a promptly lodged F.I.R. ---Robbed articles were recovered from the possession of accused which was sufficient to connect him with the alleged offence---Only tentative assessment of the material available on record had to be made at bail stage, and deeper appreciation had to be avoided---No mala fide on the part of the complainant and the Police was established on record---Grant of bail in non-bailable offences, was not a right, even though the same did not fall under the prohibitory clause of S. 497, Cr.P.C.---Every case had to be decided on its own merits and the case-law could not be applied as a rule---Bail was refused.
Tariq Bashir v. The State PLD 1995 SC 34; Muhammad Sachal v. The State 2005 SD 684; Ghulam Sarwar v. The State 2005 PCr.LJ 2004; Muhammad Farooq v. The State 2005 YLR 1672; Khatoor v. The State 2005 PCr.LJ 626; Sarwar v. The State 2000 PCr.LJ 82; Rab Nawaz v. The State 2009 YLR 62 and Muhammad Siddiq v. Imtiaz Begum 2002 SCMR 442 ref.
Muhammad Nasirullah Siddiqui for Applicant.
Ms. Rehana Akhtar, Additional Prosecutor-General Sindh along with Investigating Officer Shoaib-ur-Rehman for the State.
ORDER
NADEEM AZHAR SIDDIQI, J.---This is an application for bail moved on behalf of the applicant, namely, Muhammad Asif son of Muhammad Saleem, who is allegedly involved in Crime No. 21 of 2009, under sections 380, 381/34, P.P.C. of Police Station Gobal Town.
The allegation against the applicant is that he along with co-accused Irshad has committed theft of six thaan containing 780 meters white cloth from the factory of the complainant. Police apprehended him near the place of incident and recovered from his possession stolen property, whereas another accused ran away from there.
The applicant has moved his bail application before the Court of learned IX-Judicial Magistrate, Karachi Central, who dismissed the same vide order dated 21-2-2009 on the ground that the applicant was nominated in the F.I.R. and recovery was made and that the bail cannot be granted as a matter of right in the cases not falling under the prohibitory clause.
Learned counsel for the applicant submits that the applicant has been falsely implicated by the complainant in collusion with the police. He further submits that all the witnesses are interested and no independent or private witness has been associated, which makes the case of further inquiry. He then submits that no specific role has been assigned to the applicant to connect him with the commission of the crime. He also submits that there are no reasonable grounds to believe that the applicant has committed the offence, therefore, the case is of further inquiry and the applicant is entitled to the concession of bail. He has relied upon following reported cases:
1. Tariq Bashir v. The State (PLD 1995 Supreme Court 34);
2. Muhammad Sachal v. The State (2005 SD 684);
3. Ghulam Sarwar v. The State (2005 PCr.LJ 2004);
4. Muhammad Farooq v. The State (2005 YLR 1672);
5. Khatoor v. The State (2005 PCr.LJ 626);
6. Sarwar v. The State (2000 PCr.LJ 82); and
7. Rab Nawaz v. The State (2009 YLR 62).
Conversely, the learned A.P.G. for the State vehemently opposed to the grant of application on the ground that the applicant was apprehended with the robbed property. He further submits that the name of applicant has been mentioned in the F.I.R. He then submits that prima facie the involvement of the applicant for the commission of the above offence is established, therefore, he is not entitled for the concession of bail.
I have heard the learned counsel for the parties and perused the record made available before me.
The incident took place on 11-2-2009 and the name of applicant has been mentioned in a promptly lodged F.I.R. The robbed articles were recovered from the possession of he applicant which at this stage is sufficient to connect him with the alleged offence. It is well-settled principle of law that at bail stage only tentative assessment of the material available on record has to be made and deeper appreciation has to be avoided. No mala fide on the part of the complainant and the police is established on the record. The grant of bail in non-bailab offences is not a right even though the same do not fall under the prohibitory clause.
In the reported case of Muhammad Siddiq v. Imtiaz Begum (2002 SCMR 442) the Hon'ble Supreme Court has held that "none can claim bail as of right in non-bailable offences even though the same do not fall under prohibitory clause of section 497, Cr.P.C." Every case has to be decided on its own merits and the case-laws cannot be applied as a rule.
In view of the above discussion, I do not find merits in this application, which is accordingly dismissed.
H.B.T./M-108/K Bail refused.