' Amirzada Security Officer Zambis Knitwear Factory Raiwind Road, Lahore appeared before Nazakat Ali, A.S.-I. Police Station Chung while he was on "Gasht" of the area and submitted the written complaint to the effect that Mahmood Ahmad petitioner-accused came to water-tape to fetch the water who threw some garments which he had stolen from the factory. He apprehended Mahmood Ahmad and took into his possession the garments. At the time of the submission of the complaint he produced Mahmood Ahmad along with nine garments before Nazakat Ali, A.S.-I. The garments were taken into possession vide memo. Attested by Sardar Ali and Laiq Shah, Security Guards of the factory. Formal F.I.R. No,9, dated 9-1-1999 was registered at Police Station Chung under section 381/411, Pakistan Penal Code.
2. Mahmood Ahmad was arrested whose bail plea has been rejected by the learned Area Magistrate as well as by Mr. Khalid Rashid, Additional Sessions Judge, Lahore. He has filed this petition before this Court with the same desire.
3. I have heard the learned counsel for the petitioner as well as the learned State Counsel and gone through the record before me. Relying on the ruling published as Abdul Haye Siddiqui and 2 others v. The State 1993 PCr.LJ 446 Karachi and the command of the Supreme Court of Pakistan published as Tariq Bashir and 5 others v. The State PLD 1995 SC 34 learned counsel for ,the petitioner laid the emphasis that the offences under section 381/411, Pakistan Penal Code do not fall within the prohibitory clause and that the petitioner is entitled to be admitted to bail especially when the recovery was effected before the registration of the F.I.R., the investigation stands concluded and the petitioner is in the judicial lock-up. On the contrary learned State Counsel argued that the petitioner is involved in a case of theft which is non-boilable and for that reason he is not entitled to be admitted to bail. I would express that the reasoning adopted by the learned counsel for Mahmood Ahmad petitioner has to prevail. On my query Nazakat Ali, A.S.-I. Intimated that no case of the instant nature stands registered or is pending against Mahmood Ahmad petitioner-accused.
I would express that a bail application has to be disposed of within the framework of section 497 of the Code of Criminal Procedure and that the A subordinate Courts are bound to follow the dictum enunciated by the Supreme Court. Keeping in view the maximum punishment of three years under section 411, Pakistan Penal Code and the maximum punishment of seven years under I can section 379, Pakistan Penal Code, it c safely be held that the offences for which Mahmood Ahmad petitioner has been booked do not fall within the prohibitory clause. No other criminal case has been registered against the petitioner. The alleged recovery of the stolen garments was effected before the registration of the F.I.R. By the complainant who is the security guard and sometimes such matters are reported to the police to put the pressure upon the labor working in the factory.
The investigation has been completed and the petitioner is in the judicial lock-up. Keeping in view the aforesaid aspects I have to express that the dictum enunciated in the ruling, PLD 1995 SC 34, has to be followed by all the subordinate Courts. It is proper to express that it is specifically held by the Supreme Court in the aforesaid ruling that the bail will be declined only in extraordinary cases which do not fall within the prohibitory clause of the following nature:--
(a) Where there is likelihood of ascendance 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.
4. No circumstance of the aforesaid nature has been brought to the notice of this Court by the learned State Counsel. In the aforesaid ruling of the Supreme Court and in Abdul Haye Siddiqui and 2 others v. The State 1993 PCr.LJ 446 it has specifically been held that the grant of bail in a case where the offence does not fall within the prohibitory clause is a rule while its refusal, an exception.
It is simply surprising that Mr. Khalid Rashid, Additional Sessions Judge referred to the aforesaid ruling, PLD 1995 SC 34, and did not follow the same which in the circumstances of the matter is clearly attracted thereto. It can safely be held that the orders about the refusal of bail passed by both the learned lower Courts are devoid of judicial propriety.
5. It would be instructive to express that a bail application has to be disposed of within the framework of section 497 of the Code of Criminal Procedure. There is nothing on record to project as to how the learned lower Courts ignored the provisions of subsection (1) of section 497 of the Code of Criminal Procedure according to which an accused of an offence not falling within the prohibitory clause is entitled to the discretion of the Court for the purpose of his admission to bail.
The working of the learned Additional Sessions Judge ignoring the statutory law and rulings of the superior Courts in such-like cases, which should be within his knowledge, cannot be approved. The law has to take its course and the Courts have to keep in mind the shape of scale of justice while disposing of the bail applications.
6. For what has been said above, I hold that Mahmood Ahmad petitioner is entitled to be admitted to bail than to be retained in jail.
7. I, therefore, accept this 'application and admit Mahmood Ahmad petitioner to bail in the sum of Rs,5,000 (Rupees five thousand only) with one surety in the like amount to the satisfaction of learned Illaqa Magistrate with the direction to appear before the learned trial Court on every date of hearing failing which the learned trial Court may cancel his bail.
8. This order shall be got executed by the petitioner within a period of fifteen (15) days failing which the, same shall become infructuous and Mahmood Ahmad petitioner shall be liable to be arrested.