INAM ULLAH KHAN, J.- Petitioners Israr and Farid Ullah are under arrest in case FIR No.15, dated 13.02.2025, under Sections 392/387/400/401/411 PPC, of Police Station City (Wana), South Waziristan (Lower). They were refused bail by the learned Sessions Judge, South Waziristan, vide order, dated 27.02.2025, therefore, they approached to this Court for the same relief through the instant petition.
2. The brief facts of the case as narrated in the FIR, lodged on the report of the complainant Usman Khan SHO of Police Station City Wana, are that there were complaints from the public at large as regards dacoities and extortion in the area. On 13.02.2025, at around 1200 hours, he received information about the presence of suspects involved in such activities. Accompanied by a police party, he rushed to the location and found three individuals who attempted to flee upon seeing the police. The police managed to apprehend the petitioners, while their accomplice, identified as Toor, escaped. During cursory interrogation, the petitioners revealed that they had buried three stolen mobile phones, which were recovered on their indication. The incident was documented in a murasila, leading to the registration of the FIR.
3. Arguments heard and record perused.
4. The prosecution's case, as per the FIR, is that the petitioners were allegedly involved in offences under Sections 392, 387, 400, 401 and 411 of the Pakistan Penal Code (PPC). However, upon perusal of the record, there is no prima facie evidence available that establishes any link or connectivity of the petitioners with a gang habitually committing dacoity or theft. At this stage, the case, concerning the aforementioned offences, requires further inquiry..
5. As regards the recovery of three mobile phone sets on the pointation of the petitioners, it is noteworthy that no one has come forward to claim ownership of these mobile phones or to assert that they were snatched or stolen from them. Mere recovery of mobile phones does not amount to the offence of robbery. Reliance is placed on the case of Muhammad Rafique v. State, (1997 SCMR 412, whereby it has been observed as under: Fact that the petitioner is accused in a number of cases of robbery, is not sufficient to deprive him of his liberty. It has not come on record as to, why identification test of the petitioner through eye- witnesses was not held when his name did not appear in the FIR. Mere production by the petitioner before police of some cash alleged to have been obtained by robbery, in absence of any other evidence. In this respect the observations made in the case of Ishaq Masih v. The State (1993 SCMR 1322) are relevant.
6. At the most, the recovery of mobile phone sets from the petitioners' possession may attract the offence under Section 411 PPC, the punishment for which does not fall within the restrictive clause of Section 497 Cr.PC. The Hon'ble Supreme Court has recently reaffirmed that Courts must exercise their discretion judiciously when declining bail in cases where the offence does not fall within the prohibitory clause of Section 497(1) Cr.PC. Courts should not merely rely on incriminating material but must adhere to the well-settled principle that in such cases, the grant of bail is the rule and refusal is an exception.
7. The Supreme Court has already cautioned the Courts below in Muhammad Tanveer v. State (PLD 2017 SC 733), in the following terms: Once this Court has held in categorical terms that grant of bail in offenses 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 constitutionally binding [under Article 189] on all Courts throughout the country including the Special Tribunals and Special Courts.
8. The main purpose of keeping an under-trial accused in detention is to secure his attendance at the trial so that the trial is conducted and concluded expeditiously or to protect and safeguard the society if there is an apprehension of repetition of offense or commission of any other untoward act by the accused. Therefore, to make the case of an accused person fall under the exception to the rule of the grant of bail, the prosecution has to essentially show from the material available on the record, such circumstances that may frustrate any of the said purposes, if the accused person is released on bail.
9. The basic principle in bail matters in such circumstances or such conduct of the accused person that may bring his case under the exceptions to the rule of granting bail. They include the likelihood of:
(a) his absconding to escape trial;
(b) his tampering with the prosecution evidence or influencing the prosecution witnesses to obstruct the course of justice; or
(c) his repeating the offense keeping in view his previous criminal record or the desperate manner in which he has prima facie acted in the commission of offense alleged.
10. In view of the above, it is also essential to note that a Court that deals with an application for a grant of bail must apply its judicious mind to the facts and circumstances of the case and the conduct of the accused person, and decline to exercise the discretion of granting bail to him only when it finds any of the above-noted circumstances or some other striking circumstance that impinges on the proceedings of the trial or poses a threat or danger to the society, justifying his case within the exception to the rule, as the circumstances mentioned above are not exhaustive and the facts and circumstances of each case are to be evaluated for application of the said principle.
11. In the present case, the record is silent regarding any previous criminal involvement of the petitioners. The investigation is complete, and the petitioners are no longer required for further inquiry. Therefore, their continued detention would serve no useful purpose.
12. It is imperative to note that the grant of bail does not amount to acquittal; rather, the custody of the accused is transferred to the surety. The mere heinous nature of an offence is not, in itself, a valid ground for denying bail. Bail cannot be withheld as a form of punishment, as the liberty of a person is a paramount consideration. Reliance is placed on Haji Muhammad Nazeer v. The State, (2008 SCMR 807).
13. In view of the above discussion, I am of the considered opinion that this case calls for further inquiry under Section 497(2) Cr.PC. Consequently, this petition is allowed, and the petitioners are admitted to bail, subject to furnishing bail bonds in the sum of Rs.100,000/- (Rupees one hundred thousand only) each, with two sureties in the like amount, to the satisfaction of the Illaqa/Duty Judicial Magistrate.
14. These are the detailed reasons for my short order of even date.