2010 PLP 1430 (MLD)

SAYYED MAZAHAR ALI AKBAR NAQVI, J.

Through the instant petition, Muhammad Ajmal petitioner seeks his post-arrest bail in case F.I.R. No.226 of 2007, dated 14-5-2008, offence under sections 392, 395, 411, P.P.C., registered at Police Station Saddar Mandi Baha-ud-Din.

2. Precisely, facts of the case as contained in the F.I.R. as alleged by the complainant are that on night between 5th and 6th May, 2008, four unknown persons armed with firearms entered into the house of Muhammad Afzal, nephew of the complainant and on gunpoint took away golden ornaments alongwith cash Rs.10,

000. Through supplementary statement the petitioner was involved in this case.

3. Learned counsel for the petitioner contends that the petitioner is innocent and has falsely been involved in this case due to suspicion. It is also argued that the petitioner is not named in the F.I.R. who has been introduced through supplementary statement, recorded after 2-1/2 months. It is also stated that no identification test parade was ever held, which makes the case of prosecution against the petitioner one of further inquiry into his guilt. It is also contended that recovery of Karra is planted one. Moreover, this article is common and available in the bazaar easily. The main emphasis of the learned counsel is that petitioner is suffering from HIV/AIDS and HCV, which has also been verified by the jail doctor. It is contended that treatment of the petitioner is not possible within the jail premises; therefore, he is entitled to the concession of bail.

4. On the other hand, learned DPG has opposed this petition vehemently mainly on the ground that the offence with which the petitioner is charged falls within the prohibitory clause of section 497(1), Cr.P.C. It is contended that the petitioner is previous record-holder. There are six cases of similar nature, registered against him. On Court's query, learned DPG has frankly conceded that the petitioner has not been convicted in any of the cases against him.

5. Arguments advanced from all corners have been heard. Record available on file perused.

6. There is no denial to the fact that name of the petitioner does not figure in the F.I.R. and he was introduced through supplementary statement after a delay of 2-1/2 months. Moreover, supplementary statement cannot be equated with the F.I.R. as F.I.R. is the document, which is entered into the book maintained at the police station at the complaint of the informant and brings the law info motion, whereby police starts investigation of the case under section 156, Cr.P.C. Any statement or further statement of the first informant recorded during the investigation by police would neither be equipped with First Information Report nor read as part of the same. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan reported as Noor Muhammad v. The State (2008 SCMR 1556).

7. There is another material fact of the case that although the petitioner is not named in the F.I.R., however, after his arrest, the prosecution had not arranged his test identification parade. Name of the petitioner having not been mentioned in the F.I.R., it was essential that identification should have been held. Where accused had not been nominated in the F.I.R. then non-holding of identification, after the arrest of the petitioner/accused person, would bring his case within the purview of section 497(2), Cr.P.C. Reliance is placed on the case of Hidayat Ullah alias Hidoo v. The State (2008 YLR 1747), Muhammad Suleman v. Riasat Ali (2002 SCMR 1304), Allah Wasaya v. The State (2004 PCr.LJ. (Lahore) 1659).

8. So far arguments of learned DPG regarding registration of six other criminal cases against the petitioner is concerned, it is established principle of law that until and unless guilt is proved, accused would be deemed to be innocent and mere registration of number of cases against the petitioner, without conviction, is no ground for withholding grant of bail, especially when accused was not a previous convict. Reliance is placed on the case of Rahim alias Rahmat and another v. The State (1998 PCr.LJ 821).

9. Moreover, the petitioner has also produced copy of medical certificate duly issued by the jail doctor according to which the petitioner is facing physical incarceration and HIV/AIDS and HCV is positive. Therefore, without touching the merits of the case qua recovery effected from the petitioner, lest it may prejudice the case of either party at trial, I am of the considered view that the petitioner has made out a case for his enlargement on bail.

10. Resultantly, the instant petition is accepted and the petitioner is admitted to bail after arrest subject to his furnishing bail bonds in the sum of Rs.1,00,000 with two sureties each in the like amount to the satisfaction of learned trial Court. A.R.K./M-379/L????????????????????????????????????????????????????????????????????????????????? Petition accepted.