2008 PLP 1100 (YLR)

HASNAT AHMAD KHAN, J.

Muhammad Rafiq petitioner, seeks post-arrest bail in case F.I.R. No. 541 of 2004, dated 27-12-2004 registered at Police Station A-Division Kasur, in respect of offences under sections 394/495, P.P.C.

2. Briefly the prosecution story as narrated in the F.I.R. lodged at the instance of Malik Nazir Ahmad complainant, is that on 27-12-2004 at 11-15 a.m. four robber intercepted the complainant's motorcycle while he was carrying an amount of Rs.11,25,180 for depositing the same in the Bank. At the time of occurrence the complainant, who was an employee of Nasir Filling " Station, statedly was accompanied by a security guard namely Muhammad Younas. The complainant further alleged that after encircling the complainant and the aforementioned Muhammad Younas security guard, the aforementioned bandits robbed the bag containing said amount after causing a fire-arm injury to Muhammad Younas P.W. and decamped from the spot. Hence the F.I.R.

3. It would be relevant to point out here that the said crime was committed by unknown persons, however, on 4-7-2005 the complainant nominated five people including the petitioner, as culprits of the said crime.

4. In support of this petition learned counsel for the petitioner has submitted that the petitioner was not named in the F.I.R., rather he was implicated in this case after eight months of lodging of the FIR., that in fact no offence of dacoity/robbery was ever committed by any one and the story of dacoity was fabricated by the complainant, who was an employee of Nasir Filling Station, just to swallow the amount of owners of said petrol pump; that the petitioner is entitled to bail on the ground of delay in trial for which the petitioner cannot be held responsible; that though the charge has been framed under sections 395 and 394, P.P.C. but considering the fact that during the investigation only three accused have been found guilty, the offence under section 395, P.P.C. would not be attracted; and that the petitioner is entitled to bail on the basis of rule of consistency as Muhammad Tayyab, co-accused of the petitioner, has already been granted bail by this Court.

5. Conversely, learned Deputy Prosecutor General has opposed the bail application on the ground that the offence allegedly committed by the petitioner falls within the prohibitory clause and that recovery of an amount of Rs.2,00,000 has been effected from the petitioner.

6. After hearing the arguments put forth by the parties I have concluded that the F.I.R. was registered against unknown bandits but after the arrest of the petitioner no identification parade was held to connect the petitioner with the alleged crime. I have further noticed that the alleged recovery of net cash had allegedly been effected from the petitioner after about nine months of the occurrence, however, the wroth of the same would be seen at the relevant time. Therefore, a case of further inquiry into the guilt of the petitioner within the purview of section 497(2), Cr.P.C. has been made out.

7. Besides, the petitioner is behind the bars since 2-9-2005 but the trial has not yet been concluded though a period of about 2 years and 9 months has elapsed, further evidence of not a single witness has so far been recorded. A perusal of the order sheet of the trial Court appended with this petition reveals that it is the prosecution which is causing the delay in trial. Copies of the required documents were supplied to the accused on 28-4-2006 and the charge was framed on 5-6-2006. But, despite issuance of warrants against the prosecution's witnesses and grant of more that 26 adjournments to the prosecution; for producing its evidence, it has failed to produce even a single witness up till now. Therefore, the petitioner cannot be held responsible for delay in the trial. It is true that after shedding third proviso annexed to section 497, Cr.P.C. no accused can claim bail as matter of right on the ground of extraordinary delay in the trial but that does not give a license to the prosecution to delay the ordials of the under-trial accused for an indefinite period. Every accused is presumed to be innocent till he is proved guilty. It is another established law that the bail cannot be held as a punishment. It is cardinal principle of criminal jurisprudence that in case of mistaken relief of grant of post-arrest bail the prosecution can be compensated by convicting and awarding appropriate sentence to the accused but in the case of ultimate acquittal of the accused he cannot be compensated for the incarceration undergone by him on the basis of false allegation. Therefore, I am inclined to grant the bail to the petitioner, who is suffering pre-trial punishment since 2-9-2005.

8. Besides, the petitioner is entitled to bail on the basis of rules of consistency as Muhammad Tayyab co-accused of the petitioner, has already been allowed post-arrest bail by this Court vide order, dated 7-12-2007 passed in Criminal Miscellaneous No.7101-B of 2007.

9. Consequently, the application in hand is accepted and the petitioner is allowed post-arrest bail subject to his furnishing bail bonds in the sum of Rs.2,00,000 (rupees two hundred thousand) with two sureties in the like amount to thin satisfaction of the learned trial Court. H.B.T./M-34/L Bail granted.