TARIQ MEHMOOD JAHANGIRI, J.--Through the instant petition, the petitioner seeks bail after arrest in case FIR No. 729/20, dated 04.12.2020, offences under section 381-A/41 1, P.P.C., registered at Police Station Koral, Islamabad.
2. Brief facts of the case are that the petitioner/accused committed theft of motorcycle bearing registration No. RIP- 5188 of the complainant. Later on, same was recovered at the instance of the petitioner/accused.
3. Learned counsel for the petitioner/ accused contends that the petitioner/ accused is innocent and has falsely been implicated in this case; that petitioner/ accused is not nominated in the FIR; that offence levelled against the petitioner/ accused does not fall within the prohibitory clause of section 497, Cr.P.C; that the petitioner/accused is in the judicial lock up and no more required to the police for further investigation and prayed that this bail petition may kindly be allowed. Learned counsel for the petitioner/accused has relied upon "PLD 2017 Supreme Court 733 titled as Muhammad T anveer v . The State and another" .
4. On the other hand, learned state counsel assisted by learned counsel for complainant vehemently opposed bail application and prayed for its dismissal on the ground that recovery of motorcycle has been effected from the petitioner/ accused.
5. Arguments heard, record perused.
6. First of all I want to dilate upon the principle of grant of bail in cases not falling under the prohibitory clause of section 497, Cr.P.C. In this regard the law has been laid down by the Hon'ble Supreme Court of Pakistan in judgment reported as "PLD 1995 Supreme Court 34 titled as "Tariq Bashir and others v. The State", wherein, it is held that "in non-bailable offences the grant of bail is not a right but concession/grace. Section 497, Cr.P.C. divided non-bailable offences into two categories i.e. (i) offences punishable with death, imprisonment for life or imprisonment for ten years; and (ii) offences punishable with imprisonment for less than ten years. The principle to be deduced from this provision of law is that in 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) where there is likelihood of abscondance of the accused;
(b) where there is apprehension of the accused tampering with the prosecution evidence;
(c) where there is danger of the offence being repeated if the accused is released on bail; and
(d) where the accused is a previous convict".
7. The same principle has been laid down in "PLD 2017 Supreme Court 733 titled as Muhammad Tanveer v. The State and another" , wherein it is held that "once this Court has held in categorical terms that grant of bail in offences not falling within the prohibitory limb of Section 497 Cr.P.C. shall be a rule and refusal shall be an exception then, the Courts of the country should, follow this principle in its letter and spirit because principles of law enunciated by this Court are constitution ally binding on all Courts throughout the country including the Special Tribunals and Special Courts". It has further been held that "We are shocked and disturbed to observe that in cases of this nature, not falling within the prohibition contained in section 497, Cr.P.C., invariably grant of bail is refused on flimsy grounds. This practice should come to an end because the public, particularly accused persons charged for such offences are unnecessarily burdened with extra expenditure and this Court is heavily taxed because leave petitions in hundreds are piling up in this Court and the diary of the Court is congested with such like petitions." The same principle has been laid down by the Hon'ble Supreme Court in 2011 SCMR 1708 , 2016 SCMR 1439 , 2020 SCMR 1258 and 2020 SCMR 717, wherein it is held that "where a case fell within non-prohibitory clause of section 497 Cr. P.C. the concession of granting bail must be favorably considered and should only denied in the exceptional circumstances".
8. In the instant case there is no evidence of theft of motorcycle even FIR was not registered immediately after the occurrence on 25.11.2020 rather the complainant identified his motorcycle on 04.12.2020 in the police station, where-upon FIR was registered. Section 381-A, P.P.C. is not attracted and this case falls only under section 411, P.P.C., the punishment whereof is provid ed as three years, or with fine or with both which does not fall under prohibitory clause of section 497, Cr.P.C. The police record is also silent that when and from where the stolen motorcycle was got recovered by the accused/petitioner .
9. I do not find this to be a case where it should be refused as an exception. Ultimate conviction can repair the wrong caused by mistaken relief but no satisfactory reparation can be offered to the, accused for his unjustified incarceration if he is acquitted ultimately .
10. A tentative assessment of record shows that present petitioner has made out a case of further inquiry as envisaged under section 497(2), Cr .P.C.
11. In view of above, the instant petition is accepted and the petitioner is admitted to bail subject to furnishing bail bonds in the sum of Rs. 50,000/- (Fifty Thousand only) with one surety in the like amount to the satisfaction of learned trial Court.
12. Needless to mention that, this is a tentative assessment which shall not af fect the trial of case in any manner .