1. F.I.R. in this case was registered on 4-11-2002 at Police Station Gadap by S.H.O. Muhammad Nawaz Gondal of Police Station Gulzar-e-Hijri on behalf of the State under sections 379/511/401/34, P.P.C. and 13/A of Anti-National Activities Act 1974. According to the F.I.R., on the basis of spy-information received by the said S.H.O. he reached at the place of incident and succeeded in apprehending seven (7) culprits named in the F.I.R. who were making attempt to commit theft from the pipe-line of Pak Arab Refinery Limited. However, eleven (11) culprits made their escape good, they have also been named in the F.I.R., as such the total number of accused involved in the offence comes to eighteen (18). However, it is alleged that during the investigation some of the accused disclosed the names of the present applicant and his three brothers as the accomplices, hence they were also made as accused and shown as absconders in the challan. A perusal of the challan shows that section 13/A of the Anti-National Activities Act was dropped and now the accused have to face their trial only for the offences under sections 379/ 511/ 401/ 34, P.P.C.
2. Mr. S. Ahmad Ali Shah, learned counsel for the applicant, in support of his plea for pre-arrest bail has mainly argued that name of the applicant admittedly does not appear in the F.I.R. and he has been falsely implicated subsequently at a later stage by the police with mala fide intentions in order to cause insult, harassm ent and humiliation to him. He has further argued that prima facie there is no evidentiary value of the statements made by some of the accused before police disclosing the name of the present applicant and three others as their, accomplices. This very fact itself calls for further enquiry. Learned counsel has further argued that the applicant is a respectable citizen and a Zamindar. There is nothing incriminating to connect him with the commission of offence and in case he is arrested he shall have to face insult and humiliation at the hands of police who have falsely implicated him and want to arrest him in the case with mala fide intention and ulterior motive.
3. Learned counsel has further argued that the offences for which the applicant is to be tried do not fall within the prohibitory clause of section 497, Cr.P.C. Applicability of section 511 with section 379, P.P.C. and the contents of the F.I.Rs, show that no theft was committed and even according to the prosecution, at . the most it appears to be, a case of attempt to commit theft for which no express provision is made by the Code for the punishment of such attempt hence it may extend to one half of the longish term of imprisonment provided for the offence. So far applicability of section 401, P.P.C. is concerned, in the first instance there is nothing on record against the applicant to justify the applicability of the ingredients of that section and further more the punishment for the said offence also does not fall within the prohibitory clause of section 497, Cr.P.C.
4. Mr. Fazalur Rehman Awan, learned State counsel, after going through the police papers has rightly raised no objection to the confirmation of the interim bail already granted to the applicant/accused on 13-1-2003. He has stated that except the statements of some co-accused before the police there is nothing against the present applicant to connect him with the commission of the offences with which he is charged and what is the evidentiary value of such statements of the co-accused is to be resolved during the trial. He has also stated that increase in the number of culprits from eighteen (18) to twenty two (22) is itself a ground to justify the grant of bail under the circumstances of the case.
5. Mr. Raja Ali Asghar, learned counsel for the Pak Arab Refinery Limited, has vehemently opposed to the confirmation of the bail. He has argued that pre-arrest bail is to be considered on somewhat different grounds from bail after arrest. He has further argued that simply for the reason that the punishment to be awarded in a particular offence does not fall within the prohibitory clause of section 497(2), Cr.P.C. is no ground to grant bail to an accused who is involved in such type of offences. In support of his contention he has placed reliance on the cases of (1) Tariq Bashir and others v. The State PLD 1995 SC 34, (2) Imtiaz Ahmad another v. The State PLD 1997 SC 545, (3) Mir Nawaz and another v. The State 2002 PCr.LJ 510 and (4) Ayaz Ahmad v. The State 2002 PCr.LJ 965.
6. I have considered the arguments of the learned counsel for the parties and perused the police papers. I have also taken into consideration the case-law cited by Mr. Raja Ali Asghar.
7. Indeed, it is not a rule that bail is to be granted in all such cases which do not fall within the prohibitory clause of section 497, Cr.P.C. However, there is no universal applicability of the law in criminal cases as the facts and circumstances of each case which mostly differ from each other are to be kept in view. The F.I.R. in 'this case shows that seven (7) persons were arrested from the place of incident who allegedly disclosed the names of other eleven (11) culprits who had run away from the place of Wardat, after seeing the police party and their names are shown as absconders in the challan. Admittedly, the name of the present applicant does not transpire in the F.LR. to be amongst the said eleven (11) culprits and prima facie it appears that if the applicant would have been one of the culprits his; name would have appeared in the F.I.R. like others who made their escape good. The offence allegedly committed is shown to be an attempt to commit theft which shall fall under sections 379/511, P.P.C., as such, punishable with one-half of the longest term of imprisonment for section 379, P.P.C. So far applicability of section 401, P.P.C. is concerned, as rightly argued by the learned counsel for the applicant, the ingredients of the said offence also appear to be lacking.
8. Learned counsel for the applicant has pleaded that in .case the applicant shall be arrested he shall face insult and humiliation at the hands of the police who wants to arrest him with mala fide intentions and for ulterior motive. Challan has already been submitted and the applicant does not appear to be required for any further investigation. He has not been declared a proclaimed offender so far. Under these circumstances interim pre-arrest bail granted to the applicant is confirmed on the same terms.
9. All the observations made above are tentative in nature and shall not cause prejudice to the case of the prosecution or defence at the trial.