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Petitioner: ASIF MUMTAZ alias POPPI VS Respondent: StateHonorable Justice Syed Shabbar Raza RizviMuhammad Akram Javed,Ms. Samina Shahzadi
2005 Y L R 3168
2005 Y L R 3168
[Lahore]
Before Syed Shabbar Raza Rizvi, J
ASIF MUMTAZ alias POPPI---Petitioner
Versus
THE STATE---Respondent
Criminal Miscellaneous No. 1843-B of 2005, decided on 26th April, 2005.
Criminal Procedure Code (V of 1898)---
----S.497 --- Penal Code (XLV of 1860), S.392---Bail, refusal of --- Section 497, Cr. P. C., is divided into two parts: One part deals with offences falling under prohibitory clause and other part deals with those offences which do not fall within prohibitory clause---Considerations for both classes of cases are different from each other---In cases which do not fall within prohibitory clause, grant of bail is a rule and refusal an exception---Court while considering bail in cases which fall under prohibitory clause, has to be more vigilant and slow in granting discretionary relief of bail---Accused, in case had used .7 mm rifle in the occurrence and same had been recovered---Accused had successfully manoeuvred affidavits from complainant---Case against accused being covered by prohibitory clause of S.497, Cr.P.C., his bail application was dismissed.
Muhammad Akram Javed for Petitioner.
Ms. Samina Shahzadi for the State.
Date of hearing: 26th April, 2005.
ORDER
SYED SHABBAR RAZA RIZVI, J.---The petitioner has moved this bail application under section 497, Cr.P.C. in F.I.R. No.83 of 2004, dated 19-3-2004, under section 392, P.P.C. at Police Station, Bambanwala, District Sialkot.
2. According to the F.I.R., the complainant was coming from Daska to his village on his motor bicycle and on the day of occurrence, he was intercepted by three persons who were also riding a motorcycle. The accused persons took out their arms and aimed the same at the complainant. The complainant was deprived of his wrist watch of Rs.600. The complainant's companion Muhammad Rafiq was also deprived of Rs.700, etc.
3. The learned counsel for the petitioner submits that there is a delay of 11 days in lodging the F.I.R. He also submits that complainant has sworn an affidavit whereby, he has deposed that he gave statement against the petitioner on saying of police. The learned counsel also submits that there is a recovery of Rs.300 and a .7 MM rifle, the same rifle has been shown as a recovery item in another case also, the recovery in the other case is also shown on the same day. The recovery was witnessed by police officials only.
4. On the other hand, the learned counsel for the State submits that the petitioner has been found guilty after a proper investigation. As far as affidavit of the complainant is concerned, according to the learned counsel, the same is not on the police record as it was never produced before the Investigating Officer. The learned counsel also submits that a recovery of Rs.300 is effected from the petitioner as allegedly the complainant was deprived of Rs.300 only. She further submits that .7 MM rifle has been recovered from the petitioner with which he was armed at the time of occurrence. She also submits that the case of the petitioner falls within prohibitory clause as the punishment is prescribed 10 years for the alleged offence.
5. I have heard the learned counsel for the parties. The main emphasis of the learned counsel for the petitioner is that the complainant has disowned the version of the F.I.R. by swearing an affidavit in favour of the petitioner, whereby, he had deposed that under police pressure he recorded the F.I.R. It is interesting to note that today I am seized of three bail applications of the petitioner and in all these three bail petitions, the complainants have sworn affidavits in favour of the petitioner. None of the complainants had sworn the affidavits during the investigation as the same are not on the police record. The recovery of .7 MM rifle is shown in two cases out of three fixed today. The police officials, present in Court, have submitted that same .7 MM rifle was used in the occurrence, therefore, recovery of the same rifle is also shown in the cases. The answer of the police officials is convincing. It seems that petitioner has been successful in manoeuvering the affidavits from the complainant at the subsequent stage.
6. Section 497, Cr.P.C. is divided into two parts. One part deals with those cases which are called offences falling under prohibitory clause and the other part of section 497, Cr.P.C. deals with those offences which do not fall within the prohibitory clause. The considerations for both classes of cases are different from each other. For example, it has been held by the Supreme Court in number of cases that bail in cases which do not fall within prohibitory clause should be granted as a rule and bail should be refused as an exception. Therefore, it is obvious from the above that while considering bail in cases which fall under prohibitory clause, the Court has to be more vigilant and slow in granting the discretionary relief of bail. Therefore, in view of the above discussion, reasons and as the present case is covered by the prohibitory clause, this bail application is dismissed.
H.B.T./A-540/L Application dismissed.