2000 PLP 2500 (YLR)

Mrs. Deeba Mirza for the State. Date of nearing; 15th February, On 21-2-1999 Ghulam Mustafa complainant got recorded F.I.R. No.40 at Police. Station Baddiana District Sialkot under section 395/392, Pakistan Penal Code about an occurrence taking place on 20-2-1999 at 9-55 p.m. Ghulam Mustafa complainant got recorded the aforesaid F.I.R. with the allegation that he alongwith Zulfiqar Ali son of Muhammad Ramzan and Zulfiqar Ali Butt was going. He reached near the ' Adda' of Mauza Mundake Bairan where four persons surprised them. They were none else than Muhammad Asghar, Mubashhir and Shehzad each armed with 30-bore pistol as well as Mushtaq Ahmad armed with a Khanjar. They are said to have removed forcibly an amount of Rs.25,300 from the pocket of Ghulam Mustafa, an amount of Rs.1,870 from the pocket of Zulfiqar Ali son of Muhammad Ramzan and an amount of Rs.10,400 from the pocket of Zulfiqar Ali Butt. Nadeem Khan Chowkidar arrive, at the spot on a bicycle who was having a torch who put on the same and thereafter he identified all the four accused.

2. On 23-2-1999 Ghulam Mustafa complainant got recorded his supplementary statement wherein he got eclipsed Shehzad and Mubashhir as his accused and took the stand that he nominated them at the instance of some person. He introduced Muhammad Saleem, Muhammad Aslam and Muhammad Yousuf in addition to Muhammad Asghar petitioner-accused and Mushtaq Ahmad as accused persons. Muhammad Asghar petitioner was arrested on 28-2-1999 who while under police custody is said to have led to the recovery of Rs.200 from the room of his house. The bag plea of Muhammad Asghar petitioner has been dismissed by the learned lower Courts who has filed this petition before this Court to try his luck to be admitted to bail.

3. I .have heard the learned counsel for the petitioner as well as the learned State counsel and gone through the record of the learned counsel for the petitioner are that by making his supplementary statement on 23-2-1999 wherein two co-accused were deleted and three accused were introduced, the case of the prosecution against Muhammad Asghar petitioner-accused has become that of further inquiry. He added that this accused is said to have been identified alongwith three co-accused in the light of torch and the chance of error in the identification of all the accused cannot be ruled out. He maintained that the recovery of Rs. 200 at the instance of Muhammad Asghar petitioner-accused seems to have been made in routine. He further pointed out that Muhammad Ashgar was arrested on 28-2-1999 whose detention is punishment without trial. On the contrary learned counsel for the State laid the emphasis that the petitioner is nominated as the accused in the F.I.R. who forcibly deprived Ghulam Mustafa complainant and his companion of huge amount of Rs.37,570 and this petition has no merit.

4. I would express that the reasoning adopted by the learned counsel for Muhammad Asghar petitioner-accused has to prevail. Ghulam Mustafa named Muhammad Asghar petitioner-accused as well as Mushtaq Ahmad, Mubashhir and Shehzad as the accused who committed. the offence under section 392, Pakistan Penal Code. However, after two days he took the somersault and eclipsed Mubashhir and Shehzad from the list of the accused persons and specifically stated that he named them at the instance of some person. He introduced three persons named as Muhammad Yousaf, Muhammad Aslam and Muhammad Saleem. The aforesaid conduct of Ghulam Mustafa complainant has made me to express that the allegations made by him in the F.I.R. and even thereafter in the supplementary statement shall have to be viewed with caution. This aspect of the matter has made the case of -the prosecution against Muhammad Asghar petitioner as that of further inquiry. Another aspect to be recorded is that four accused nominated in the F.I.R. were identified in the light of torch which was put on by Nadeem Khan Chowkidar who arrived at the spot per chance on a bicycle. Not only that the per chance arrival of Nadeem Khan is yet to be analysed, chance of error of identification of four persons in the light of torch cannot be ruled out. The alleged recovery of Rs. 200 at the instance of Muhammad Asghar can well be termed as absurd. The number of currency notes were not mentioned in the F.I.R. It seems that the Investigating Officer has simply made an overdoing in this regard to ornaments the prosecution case so that this ingredient is treated as a corroborative piece of evidence. I would express even at this initial stage that the Police Officer has remained unsuccessful in his enterprise. Admittedly no case of the instant nature is already registered or pending against Muhammad Asghar. Consequently, I hold that it is a fit case for the admission of Muhammad Asghar petitioner-accused to bail.

5. It is proper to record that both the learned lower Courts have violated the provisions of section 497 of the Code of Criminal Procedure in a glaring manner. A bail application has to be disposed of within the framework of section 497 of the Code of I Criminal Procedure. The concession of bail cannot be denied in routine. An accused person cannot be detained in the judicial lock up as a punishment. Muhammad Asghar petitioner was arrested on 28-2-1999 while today is 15-2-2000. The aforesaid reasoning has made out that the matter was not properly analysed and dissected by the learned Additional Sessions Judge who is expected to show better performance. It is a matter of common knowledge that a person behind the judicial lock-up is a parasite on the family in addition to the pangs he has to suffer. There is over-crowding in the jails. A person out of judicial lock-up is a source of convenience to the family as he can properly provide bread and batter and look after the family keeping in view the law and order situation. The bail applications have to be disposed of keeping in view the judicial propriety and the shape of scale of justice. By the denial of the provisions of statutory rights to an accused whole of the family has to see and suffer the height of plight. I must record and advise the subordinate Courts that where there is a case of bail the concession must be granted to the accused. 5-A. For what has been said above, I accept this application and admit Muhammad Asghar petitioner to bail in the sum of Rs.15,000 (Rupees fifteen thousand only) with one surety in the like amount to the satisfaction of the learned Area 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 and, proceed further in accordance with law. N.H.Q./M-69/L Bail allowed.