2007 PLP 1440 (MLD)

HASNAT AHMED KHAN, J.

Petitioner seeks post-arrest bail in case F.I.R. No. 323 of 2005, dated 28-7-2005 registered at Police Station Yousafwala District Sahiwal in respect of offences under sections 302/397/412/34, P.P.C.

2. Shorn of un-necessary details the prosecution story as unfurled in the F.I,R. lodged at the instance of Muhammad Abbas, is that on the night of 28-7-2005 at 12-10 a.m. the complainant, his brother Muhammad Iqbal (deceased), Muhammad Yasin and Nawab were returning to their home after checking/inspecting their crop. According to the complainant Muhammad Iqbal (deceased), who was ahead of rest of the party was found to be engaged in arguments with 4/5 persons. In the meanwhile one of the accused fired with his pistol hitting -chest of the deceased. Thereafter all the accused statedly decamped from the spot. Muhammad Iqbal (deceased) was rushed to the hospital, but he succumbed to the injuries. Hence the F.I.R.

3. On the next day of .the lodging of F.I.R. complainant raised accusing finger towards four accused including the petitioner by way of making supplementary statement. According to him on the night of occurrence Munir co-accused, Rashid petitioner, Shakoor, co-accused and Mushtaq co-accused while armed with fire-arm weapons were seen while going towards Chak No.53/5-L. He further narrated 'in said supplementary statement that due to the shock he could not narrate said fact in the F.I.R. On the basis of said statement the petitioner was arrested in 20-9-2005.

4. Before filing the present application for post-arrest bail the petitioner had moved a similar application bearing Criminal Miscellaneous No. 3690-B of 2006 which was dismissed as withdrawn by this Court vide order, dated 1-2-2007 with a direction to the learned trial Court to conclude the trial within three months.

5. In support of this petition, learned counsel for the petitioner has contended that order of dismissal of earlier bail application would not debar the petitioner from getting the bail as the previous application was not decided on merits. He adds that besides that despite the expiry of prescribed period of three months the trial Court has railed to conclude the trial, according to the directions passed by this Court. As tar as merits of the case are concerned learned counsel for the petitioner has contended that Abdul Shakoor, co-accused was granted bail by this Court vide order, dated 5-10-2006 passed in Criminal Miscellaneous 2253-B of 2006. Similarly Mushtaq, co-accused had already been granted bail by this Court vide order, dated 22-2-2007. He adds that the case of the petitioner is at par with that of said co-accused, therefore, on the rule of consistency he is also entitled to bail. As far as start of the trial is concerned he has submitted that Mushtaq alias Kali, co-accused had been granted bail by this Court after the start of the trial. Further submits that there is no chance of early conclusion of the trial as the presiding officer holding the trial of this case had been transferred and no body has succeeded him so far.

6. Conversely the learned counsel for .the complainant has contended that offence allegedly committed by the petitioner falls within the prohibitory clause and that the trial has already been started and, therefore, the petitioner is not entitled to bail.

7. Learned State counsel has adopted the arguments advanced by the learned counsel for the complainant.

8. Heard.

9. First of all I would like to take up .the objection of learned counsel for the complainant that after dismissal of previous application filed by the petitioner, the present application is not maintainable. I do not see eye to eye with the learned counsel for the complainant inasmuch as the previous application was not dismissed, on merits and same was simply dismissed as withdrawn with a direction to the learned trial Court to conclude the trial within three months. Said direction has not been complied with. According to the dictum laid down by Honourable Supreme Court in a case reported as Muhammad Riaz v. The State (2002 SCMR 184) simple withdrawal of the bail application would not mean that it was dealt with on merits. Consequently the objection of the learned counsel for the complainant is hereby spurned. Besides that it has been' admitted by the learned counsel for the complainant that the presiding officer holding the trial of this case had been transferred and it is not known as to when his successor would take the charge and resume the duty. Furthermore after the dismissal of previous application by this Court, bail .application of Mushtaq alias Kali has been allowed vide order, dated 22-2-2007. When said application was accepted the trial was already in progress. Even otherwise by now it has been settled that if the accused succeeds in making the. Case one of further inquiry the start of trial would not debar him from getting the bail if any case taw is required in this regard the reference is made to the cases reported as Muhammad Ismail v. Muhammad Rafique and another (PLD 1989 SC 585), Muhammad Saleem v. State (PLD 1989 Lahore 233), Muhammad Ali alias Mamma v. State (2004 MLD 1518) and Munir v. State (2002 MLD 712). ? 9-A. As far as the merits of the case are concerned I have straight-away gathered that originally none of the accused was nominated in the F.I.R. which was got registered against 4/5 unknown persons. It has been further noticed that it was a night time. occurrence. The accused were subsequently involved in this case on the basis of the supplementary statement of the complainant. According to the complainant he had forgotten to name the accused in the F.I.R. due to the fact that at the time of lodging of F.I.R. he was under a serious shock. Questions of admissibility of supplementary statement and the genuineness of the said excuse advanced by .the complainant for non-mentioning the important facts in the F.I.R, would be requiring further inquiry at the time of trial. A perusal of the record further reveals that the deceased had sustained only one fire-arm injury and during the investigation it had been found by the Investigator that it was Munir Ahmad, co-accused, who had caused that injury to the deceased. Admittedly no stolen property was recovered from the physical possession of the petitioner and apparently carbine allegedly recovered from the petitioner does not stand connected with the alleged offences.

10. To put in a nutshell, the case against 'the petitioner dills for further inquiry into his guilt within the ambit of subsection (2) of section 497, Cr.P.C. Besides that the petitioner is entitled to bail on the rule of consistency also inasmuch as Abdul Shakoor and Mushtaq alias Kali co-accused have already been granted bail by this Court and the case of the petitioner is at par with their case.

11. Resultantly this application is accepted and the petitioner is allowed concession of post-arrest bail subject to his furnishing bail bonds in the sum of Rs.1,00,000 (rupees one lac. only) with two sureties in the like amount to the satisfaction of the learned trial Court. H.B.T./R-23/L???????????????????????????????????????????????????????????????????????????????????????????????? Bail granted.