These seven petitions for bail (Crl. Misc. Nos. 2176/B-73, 2177/B-73, 2180/B-73, 2181/B-73, 2182/B-73, 2183/B-73 and 2184/B-73) arise out of one set of cases in which the questions of fact and law are similar; therefore, they are being disposed of together.
2. All these petitions arise out of several cases of theft of vital parts of tube wells belonging to Government. The main piece of evidence against all the petitioners is recovery of those parts at various occasions. The offences they are accused of are under section 380/411/457, P. P. C. The highest punishment involved is five years' R. I.
3. Though there is some difference on the date of arrest of each accused petitioner yet it is not denied from the side of the State that they are in custody for more than five months. It is also not denied that all the petitioners are in judicial lock-up. No evidence has yet been recorded though from the side of the State it is asserted that 18-7-73 has been fixed for this purpose. Earlier the witnesses were in attendance but no evidence could be recorded because on application for bail of the petitioners the files had been summoned in the Sessions Court. The challans were submitted in March 1973.
4. It is agreed on principle from both the sides that ordinarily, if the offence is not punishable with death or transportation for life, the accused should be released on bail at an appropriate stage, unless there are exceptional circumstances to withhold this concession. Learned counsel for the petitioners relied on the general grounds noted above, namely the long period of custody in judicial lock-up the offence, according to him at the most would be under section 411, P. P. C., which is punishable with three years' R. I. Only; and general criticism on recoveries, on facts as well as on question of presumption of knowledge etc. Requisite for an offence under section 411, P. P. C.
5. The bail in these cases has been vehemently opposed from the side -of the prosecution mainly on the grounds that all the petitioners are involved in a heinous crime of committing thefts of public property the consequences of which are far-reaching, that they all belong to a gang which operates incessantly, that there are already several cases against them and if released on bail, they are not likely to stop their activities; that after the proof of recovery which according to the prosecution there is ample with the police a legitimate presumption under section 114, Evidence Act, can be raised against all the accused that they are not only receiver of stolen property but might also be the actual thieves, therefore, they would be liable to be punished under section 457, P. P. C.
6. After hearing the arguments from both the sides which were somewhat lengthy, it is not necessary to discuss in detail the principles which govern the question of bail in case which do not fall within the prohibition contained in subsection (1) of section 497, Cr. P. C. Because sufficient case law is available in this behalf. I do not agree with the reasoning of the learned Sessions Judge that simply because Government property or otherwise national interest is involved and because no evidence has been, recorded, therefore, the accused should be refused bail. Ordinarily, these considerations are no bar to grant of bail in cases not falling within they aforementioned prohibition. The general rule and practice is that barring exceptional cases, bail should ordinarily be allowed at a proper stage. Exceptional cases can be of different type: e.g., when the accused become fugitive from law before he is apprehended or surrenders to lawful custody and/or is likely to abscond if released on bait; there is apprehension of the accused otherwise misusing the concession of bail it would be to the prejudice and detriment of the prosecution or the dictates of justice for example when the recoveries are to be effected or there is likelihood of the repetition of a crime and, as has been observed by their Lordships of the Supreme Court in a recent case reported Haji Wali Muhammad v. The State (1969 SCM R 233), in Cases where the grounds in the shape of evidence are so strong that the Court believes that the accused is guilty, bail might be refused. But, with; respect, I would observe that even in last mentioned cases their Lordships gave no mandate that the bail should be refused. It would depend upon the circumstances of each case and the margin of discretion of the Court in such like cases has, in no way, been restricted by the ruling of the Supreme Court. It needs to be reiterated and emphasized, as observed by their Lordships in this ruling, that "as a general rule on a charge of the kind made in this case not involving a sentence of death or transportation for life, bail should ordinarily be allowed disregarding the grounds of the seriousness or anti-social nature of the offence unless there be strong grounds, in the shape of evidence for the belief that he is guilty". The Supreme Court while granting leave in this case had allowed ad interim bail to the accused "leaving it open to the prosecution to move for its reconsideration presenting before the Court all the material in their possession including the confessional statements which had allegedly been made by some of the co-accused persons". The State did not apply for cancellation of the interim bail and no circumstances having been pointed out by the counsel representing the State "to justify the cancellation of the petitioner's bail at this stage", their Lordships accepted the appeal and directed that the accused shall continue to remain on bail. It is no doubt true that their Lordships did not specifically deal with the question as to how gang cases are to be dealt with and it is also true that there might be some justification for treating them as another exception because of certain implications, as suggested by the prosecution in this case one being, that the same offence is likely to be committed by the accused during the time that they remain on bail-, yet in the circumstances of this case I do not consider it necessary to discuss this subject in detail; because, even if this were a consideration for refusing bail in such like cases, it would not be necessary in view of the order that I propose to pass to keep all the accused persons in custody pending the decision in the trial. The general question as to what principle should govern the grant of bail in gang cases not falling within the prohibi--petition contained in subsection (1) of section 497, Cr. P.
C. Might and would be considered in some other more appropriate case.
7. The main evidence against all the accused is of recovery. Keeping in view all the arguments addressed from both the sides and the records produced for my perusal, I am not satisfied on the question of intention, knowledge and belief requisite under section 411, P. P. C. In so far as the accused-petitioner other than Muhammad Akram are concerned. It is not denied that they are uneducated rustic villagers. Subject to production of evidence at the trial, it is not certain at this stage that they could have made distinction between one part of a particular type of tube well from that of another. The main arguments were confined to offence under section 411, P. P. C. The considerations and evidence with regard to section 457, P. P. C. Is matters of evidence to be led before the trial Court. Though I have no reason to doubt the recoveries in so far as these bail proceedings are concerned, in view of the above unsatisfactory state of requisite intention, knowledge and belief, I accept all the petitions of Ghulam Sarwar, Sarfraz, Sardar and Mumtaz.
They shall be released on bail in--- the cases in which they have filed these petitions on their furnishing bail bonds in the sum of Rs. 2,000 each with one surety in the like amount each to the satisfaction of the Assistant Commissioner, Jhang.
8. The case of Muhammad Akram petitioner for the purpose of bails is distinguishable. He is a businessm an and deals in electric goods, has a shop in a bazar and it is not disputed that he is capable of identifying and distinguishing a part of a particular type from that of another. It is asserted from the side of the prosecution that all the recovered parts are identifiable as Government property and further that they are not available in open market. A positive assertion has also been made that despite the recoveries having been made from the shop of the petitioner, he has failed to explain the possession and has not produced any voucher or other document to show that his possession was innocent. I do not agree with the learned counsel that simply because no person from the locality/bazaar has witnessed and attested the recovery memo, therefore, for these proceedings the recovery itself should be doubted. The Investigating Officer has offered an explana--petition. I am not at all certain that it would not be accepted by the trial Court.
According to him, when the petitioner appeared before the police at a place other than in the locality in which his shop is situate, some persons were present and available and as his appearance and statement at that stage was witnessed by those persons, he (the Investigating Officer) thought it necessary to keep the same witnesses with him to attest the recovery which the accused, in view of his conduct and statement, was likely to lead to. Apart from those witnesses, he has further explained, he did ask some persons from the locality whether they wanted to become witnesses but they expressed their inability on account of fear of annoyance of the petitioner.
Though no finding of any determinative character can be given on such like explanation, as already observed it is not possible to assume nor it can be asserted that the trial Court would not accept this explanation and would not accept the recovery as genuine. After carefully considering the material against Muhammad Akram petitioner, I feel satisfied that there are strong grounds in the shape of evidence for the belief that he is guilty and further keeping in view all the circumstances of the case, I do not consider his a fit case for exercise of discretion. His petition, therefore, is dismissed.
9. Before closing the order, it needs to be observed that the general argument of the learned counsel for the State, that this being a gang case the accused are not entitled to bail, would at least indirectly (in so far as the basic postulates of the argument are concerned) not be considered as having met no acceptance at all; because, if in reality it is a gang case and if, as it is asserted by the State, Muhammad Akram petitioner is habitual offender as receiver of stolen property and feeds the other accused who committed thefts for his benefit on payments received from him, he having been refused bail on another ground, this would, in all probability, be a check on alleged commission of other crimes of similar type by the other accused during the tendency of the trial.
10. Though I have refused bail to Akram petitioner yet it cannot be ignored that it is due entirely to the exceptional circumstances, therefore, a copy of this order be sent to the learned trial Magistrate with a direction that he should keep in mind that the accused is in custody for several months and should try to conclude the proceedings within a month; failing which he shall have to submit a weekly report to the Member, Inspection Team of this Court who, if not satisfied with the explanation for any delay, would place the same before me for further action. It also needs to be emphasized that if the learned trial Magistrate comes to a conclusion that the witnesses and/or the accused or any of them intentionally delay the proceedings, he shall take remedial measures as are permitted under the Criminal Procedure Code.
11. Observation made herein, shall not influence the decision of the, cases of the trial on merits.