' M. BILAL KHAN, J.---Umar Draz and Noor Muhammad petitioners seek their post-arrest bail in case F.I.R. No,56 of 2004, dated 24-3-2004, registered with Police Station Massan, District Hung, initially for offences under sections 379/411, P.P.C., but later on during course of investigation section 409, P. P.0 C. Had also been added.
2. The allegation in the F.I.R. Registered at the instance of Muhammad Khan, A.S.-I. Was that while present with a contingent of police officials at Kabli Chowk on patrol duty he received spy information that under the supervision of Mohsin Block Officer, Ghulam Mustafa Waraich Guard, Noor Muhammad, Umar Daraz, and Allah Ditta Khokhar, Baildars, certain trees were being stolen from the State Forest of Sajhowal and were being loaded on trucks and if a raid was immediately conducted, the accused persons could be apprehended. According to the complainant he raided the forest and found that the State property was being loaded on two trucks and the accused tried to escape on seeing the police party. However, the raiding party was able to apprehend fourteen accused persons at the spot. Insofar as the petitioner and the rest of the accused persons were concerned they were alleged to have managed to escape from the scene in the darkness. Two trucks loaded with said trees valued at Rs,90,000 were taken into possession.
3. The petitioners were arrested on 8-7-2004 and are in custody ever since. Their plea for post- arrest bail had been turned down by the learned Special Judge, Anti-Corruption, Faisalabad Division, Faisalabad (Camp at Jhang) on 2-9-2004. Hence this petition.
4. The learned counsel for the petitioner in support of this petition has argued that from a plain reading of the F.I.R. It is clear that sections 379/411, P.P.C. Are not applicable to the facts of the case.
He argued that insofar as the petitioners are concerned, they cannot be saddled with any liability under section 409, P.P.C. Inasmuch as they are neither government servants nor public servants and that this factum is acknowledged by the department itself. He added that neither the petitioners had been arrested at the spot nor any recovery had been effected from them and they had been involved in this case on account of malice. He finally argued that the offences under sections 379/411, P.P.C. At any rate do not attract the prohibitory clause of section 497(1), Cr.P.C. And on this account the petitioners are entitled to the concession of bail.
5. The learned counsel for the State has not been able to deny the assertion of the learned counsel for the petitioner that according to the department's own showing the petitioners are not their employees. As such the applicability of section 409, P.P.C. To the extent of the petitioners prima facie is doubtful.
6. After hearing the learned counsel for the parties and perusing the record, I have observed that according to the department itself 'no wood or trees belonging to the forest department had been stolen. In this connection there is a report submitted by the Sub-Divisional Forest Officer, which is annexure 'F' to this petition. The main accused named in the F.I.R., namely, Mohsin, Block Officer and Ghulam Mustafa, Guard are still absconding and after obtaining their pre-arrest bail on two different occasions had chosen not to appear before the learned Court of Session at the time of confirmation of their bails. Insofar as roles of the petitioners are concerned, in the peculiar facts and circumstances of the case, their case needs further probe within the meanings of subsection
(2) of section 497, Cr.P.C. They are in custody for the last almost three months and cannot be retained as a measure of punishment.
7. Resultantly, this petition is allowed and the petitioners are admitted to bail subject to their furnishing bail bonds in the sum of Rs,30,000 (Rupees thirty thousand) each with one surety each in the like amount to the satisfaction of the learned trial Court.