SAJJAD AHMAD SIPRA, J.- The brief facts of the bail application are that an F.T.R 197/88 dated 1.10.1988 under Sections 379/411 P.P.C was registered at Police Station CanIt., Bahawalpur, against the petitioner.
2. According to the complaint, an F.I.R has been registered to the effect that a Motor-Cycle No.BR7718 was recovered from the house of the petitioner/accused at his behest while he was in police custody under a case in which he was caught, to have allegedly stolen the motor-cycle. The petitioner had applied for bail before the Ilaqa Magistrate which was rejected on 10.1.1989.He applied for bail before the learned Sessions Judge, Bahawalpur, which was also rejected vide order dated 24.1.1989.
3. The learned counsel for the petitioner contends for bail on the following grounds:- i) That the petitioner was not named in the F.I.R., ii) That there are no eye-witnesses of the alleged theft, therefore, at the most the case is one of under Section 411 and not under section 379 of the P.P.C., iii) That the pctitioner/accused is no longer required by the police and he is in the judicial lock-up for the last two months. iv) That the petitioner is young-man of 16/17 years of age and is not a previous convict., v) That there are no recovery witnesses of the locality of the alleged recovery; vi) and lastly that the offences charged with are not hit by the prohibitory Clause of Section 497 Cr.P.C.
In this respect the learned counsel for the petitioner relied upon Syed Saifuddin Shah vs.The State(1982 P.Cr.L.J.792), herein the bail was allowed to the accused under Section 380 on the ground that as the offence alleged was not hit by the prohibitory Clause, therefore, the bail should be granted as of right. In this case the Honourable Court relied upon Haji Wali Muhammad vs. The State (1969 SCM R 233)and Ijaz Akhtar vs.The State(1978 SCM R 64), wherein too the bail was granted as the offences are not hit by the prohibitory Clause of Section 497 Cr.P.C. The next authority cited was Muhammad Seem Khan vs. The State (1978 P.Cr.L.J. 284), wherein the accused charged with Section 411 PPC was granted bail on the same ground as stated above.The next authority cited was Qadir Bux vs.The State (NLR,1989 SD 29), herein the accused was granted bail as the offences under Section 379 PPC.And section 14, Offences Against Property (Enforcement of Hudood) Ordinance, 1979, were not hit to the prohibotory Clause. The learned counsel also relied upon Muhammad Boota vs. The State (1985 P.Cr.L.J. 1378), herein the accused was bailed out as the provisions of Section 103 Cr.P.C had not been complied with in respect of the alleged recovery effected from the accused, and Ch. Muhammad Bashir vs. Ch. Muhammad Zaman and 2 others (PLD 1985 SC(A J & K) 48,wherein it was held that bail should not be refused as punishment.
4. The learned counsel for the State opposes the grant of bail on the ground that the recovery was effected at the instance of the petitioner. He, however, concedes that the petitioner/accused is not required by the police any more, and he further concedes that the provisions of Section 103 of the Cr.P.C, have not been complied with in respect of the recovery alleged.
5. In view of the statement of the learned counsel and taking into consideration the facts and circumstances of the case, and placing reliance on the authorities cited by the learned counsel for the petitioner, the accused/petitioner is admitted to bail in the sum of Rs.30,000/- (Rupees. Thirty thousands only)with one surety in the like amount to the satisfaction of the A.C./Duty Magistrate, Bahawalpur.