1996 PLP 614 (MLD)

Date of hearing: 20th December, 1994. The petitioners were arrested on 28‑2‑1994 in case F.I.R. No.l/94 registered at Police Station Civil Line Gujrat on 2‑1‑1994 on the basis of the statement made to Iftikhar Hussian by Muhammad Hayat son of Allah Dad for the offence under sections 452/337‑All/337/F‑II/148 end 149, P.P.C.

2. Four of the co‑accused namely Muhammad Sadiq, Muhammad Aslam, Arshad and Inayat were found innocent by the Investigating Officer whereas the present petitioners were arrested and report under section 173, Cr.P.C. was prepared on‑20‑3‑1994 and filed in Court.

3. It has been contended by the learned counsel for the petitioners that the petitioners were alleged to have committed the offences mentioned in the F.I.R. but the Additional' Sessions Judge, Gujrat also considered and discussed the commission of the offence under section 458, P.P.C. while deciding the bail application and that no evidence was yet recorded in the case.

4. I am afraid neither the petitioners were reported under section 173, Cr.P.C. to have committed the offence under section 458/459, P.P.C. nor such charge was framed. Stretching the arguments too far and appreciation of such points by the Court of Sessions, which is ordinarily the Appellate Court if the sentence be more than 4 years is bound to effect the merits of the case of the petitioners during the trial.

5. No evidence has been recorded by the trial Court so far in the case and the petitioners are in judicial lock‑up for the last 10 months. They cannot be detained indefinitely only for the reason that they belong to Azad Kashmir and that their presence cannot be easily secured. The law does not differentiate between the residents of one place or the other. This fact can only be taken note of while fixing the amount of bail bonds.

6. Learned counsel appearing on behalf of the State opposed the bail petition on the ground that the offence under section 458, P.P.C., which was made out prima facie from the contents of the F.I.R. and the Additional Sessions Judge, while disposing of the bail petition, had taken due notice of the same. It was also submitted that the petitioners had been given proper opportunities at the stage of investigation to put up defence version but they did not produce any. The investigation was conducted in a fair and honest manner and the petitioners are not entitled to any concession of bail and that the offence under section 458, P.P.C. fell within the prohibitory clause and being residents of Azad Kashmir, may abscond.

7. Version of the complainant was found incorrect to the extent of four accused mentioned in the F.I.R. and as such the allegations made by him against the petitioners cannot be considered a gospel truth at the stage of consideration of bail petition. The prosecution failed to produce their evidence and the petitioners are decidedly suffering from agony of trial without any progress and that too due to the failure of the prosecution to produce its witnesses.

8. In view of the above the petition is accepted and the petitioners are allowed bail in the case in the sum of Rs.50,000 each with one surety each in the like amount to the satisfaction of A.C./Duty Magistrate, Gujrat. H.B.T./M‑2103/L??????????????????????????????????????????????????????????????????????????????? Petition accepted