1999 PLP 1493 (YLR)

Jalal petitioner is an accused person in case F.I.R. No. 28 registered at Police Station Jampur, District Rajanpur on 19-1-1990 for offences under sections 382, 170 and 171, P.P.C. Subsequently offences under sections 395 and 411, P.P.C. were added to the F.I.R. The allegation against the petitioner and his six co-accused is that they had committed a dacoity in the house of Wahid Bakhsh complainant in Village Babal Wali, Tehsil Jampur, District Rajanpur at about 9 p.m. on 15-1-1990. The petitioner was arrested by the local police in connection with this case on 6-7-1991. Subsequently he was admitted to post-arrest bail by the learned Magistrate Section 30, Jampur on 29-7-1993. Still later, upon the petitioner's non-appearance before the learned trial Court, his bail was cancelled. It is stated that in 1996 the petitioner was arrested by the police when he was caught red-handed while committing another dacoity. The petitioner again applied for bail but this time it was dismissed by the learned Magistrate Section 30, Jampur vide order, dated 15-7-1998. Subsequently another application of the petitioner for the same relief was dismissed by the learned Additional Sessions Judge, Jampur on 16-9-1998. Hence, the present petition before this Court.

2. After hearing the learned counsel for the parties and going through the record it has been noticed that the F.I.R. in this case had been lodged with a delay of four days; the petitioner had not been named in the F.I.R. as one of the culprits who had perpetrated that offence; no test-identification parade was held so as to identify and connect the petitioner with the offences alleged against him; two of the co-accused of the petitioner have already been admitted to bail and their case is not distinguishable from that of the petitioner as far as merits of the case are concerned; no incriminating article was recovered from the petitioner during the investigation of this case so as to connect him with the articles taken away by the dacoits during the occurrence in question; the only incriminating piece of evidence available with the prosecution against the petitioner was the statements of two witnesses who had stated before the police about making of an extra- judicial confession by the petitioner before them but during the, trial the said witnesses had been declared to be hostile as they had failed to support the allegation of making of the extra judicial confession by the petitioner. In this state of the evidence against the petitioner it is prima facie observed that the case against the petitioner appears to be one of no evidence directly or indirectly connecting him with the offences allegedly committed by him. Thus, the case of the petitioner appears to be one of further inquiry within the purview of subsection (2) of section 497, Cr.P.C.

3. The learned counsel for the State ha brought to the notice of the Court the facts that the petitioner had remained a fugitive from the law for over two years; a number of cases had been registered against the petitioner for committing offences similar to the one allegedly committed by him in the present case; the petitioner had been caught red-handed while committing another dacoity; and that he had repeatedly abused the concession of bail in the past. Thus, I according to the learned counsel for the State the petitioner did not deserve an exercise of discretion in his favour in the matter of bail.

4. As already observed above, on the merits of this case, the case against the petitioner calls for further inquiry into his guilt. It is settled law that in cases of further inquiry bail is to be granted as a matter of right and not by way of any concession or grace. The factors put forth by the learned counsel for the State essentially pertain to the questions of discretion and propriety of granting of bail to an accused person who has remained an absconder and has been indulging in similar offences in the past. It goes without saying that whenever questions of discretion and propriety are confronted with a question of right the latter must prevail. In this view of the matter, despite having no sympathy for the petitioner due to' his alleged involvement in other cases of similar nature, I am left with no option but to give to the petitioner what is due to him as a matter of right. This petition is, therefore, accepted and the petitioner is admitted to bail in the sum of Rs.1,00,000 with two sureties in the like amount to the satisfaction of the trial Court. N.H.Q./J-67/L Bail allowed.