1999 PLP 185 (MLD)

1997 SCMR 971 and 1997 PCr.LJ 917 ref. Ch. Nisar Ahmad for Petitioner. Kamal Mustafa for the State. The petitioner is required as accused, person in case F.I.R No. 65 of 1996 dated 27-2-1996, under section 17 of Ordinance VI of '1979 read with section 394,, P.P.C, registered with Police Station Pasroor, District Sialkot. It is alleged, inter alia, that the petitioner alongwith four others committed robbery on a petrol-pump wherefrom 21 gallons .of Mobile Oil alongwith a sum of Rs.2,424. were looted. Obviously the petitioner was not named in the F.I.R. but his description was given therein. The case was registered on the statement of Jaffer Abbas who was employed as sale-man at the petrol pump.

2. It is submitted that the occurrence took place on 27-4-1996 and the petitioner was arrested on 21-4-1996. For a period of about 11 months no challan was submitted in the Court but the petitioner remained confined in the judicial lockup. The challan was submitted on 26-9-1996 but even then not a single witness has been examined so far despite the fact that the petitioner is in custody for the last I year and 4 months. It is further argued that the complainant in this case has sworn an affidavit deposit that the petitioner was not amongst the accused who committed the robbery on his petrol pump. It is also added that one of the accused persons is named in the F.I.R, therefore, it was incumbent on the prosecution to identify them in a test identification parade but the same was not done. Above all, the petitioner is entitled to concession of bail on statutory ground because more than one year has elapsed but the trial has f riot concluded. What to speak of conclusion of trial, the same has not even practically commenced.

3. The above facts reflect very sad state of affairs. Generally grievances are made that the accused persons are admitted to bail, therefore, interest of justice is frustrated. All the agencies including the prosecution are bound by law and they are supposed to act in accordance with law and if an accused person remains confined in judicial lock-up for more than one year to a case punishable upto 10 years, he becomes entitled to bail unless that person is shown to be a hardened, desperate or dangerous criminal or involved in terrorism Ordinarily the concession of bail is not to be extended to a person who commits the offences such like the one committed in the instant case but at the same time, the Courts cannot remain oblivious of the fact that the law has to take its course if delay of more than one year is caused in conclusion of the trial and in that case the accused becomes entitled to concession .of bail in view of the provisions of section 497, Cr.P.C. No one can be kept in jail for the sake of punishment and nobody can be condemned without holding trial.

4. In this case the petitioner is statedly not a previous convict. The State 1 has not been able to show as to why the delay was caused in the submission of the challan and subsequently even after submission of the challan no progress whatsoever has been made by the prosecution. In such like situation, there remains no alternate with the Court but to admit the petitioner to bail. The slackness on the part of the prosecution to examine the witnesses, particularly the State functionaries has become a common practice which needs to be curbed and checked. Learned counsel has placed reliance on the Judgment reported as 1997 SCMR 971 wherein it is held that it is" incumbent on the prosecution to conduct test identification parade when the- accused is not named in the F.A.R. Reliance is also placed on the judgment reported a 1997 PCr.LJ 917 wherein it has been laid down that an accused person becomes entitled to concession of bail if the trial is not concluded within a period of one year. No person has to be presumed as a desperate unless it is established from the record that he has a criminal history. It has been further observed that if some accused person is involved in some other case as well, it is no ground to hold him dangerous, desperate or hardened criminal. In the instant. case, the petitioner has no previous history. Confronted with this situation, learned counsel for State has not been able to controvert the various submissions made by learned counsel for the petitioner. I, therefore, accept this petition and admit the petitioner to bail subject to his furnishing bail bond in the sum of Rs.100,000. with two sureties in the like amount to the satisfaction of the Trial Court.

5. Let a copy of this order be sent to all the Superintendents of the Police in the jurisdiction of the Principal Seat, particularly to S.P. Sialkot so as to apprise them of the interest taken by-the prosecution and progress made by them towards conclusion of trial in such like cases, so that they may look into the matter and take immediate necessary steps to submit the challans expeditiously and thereafter examine the witnesses without wasting any time to avoid the situation as narrated above. N.H.Q./T-24/L Bail allowed.