2006 PLP 2373 (YLR)

MUHAMMAD MUJEEBULLAH SIDDIQUI, J.

The applicant, Khalid Hussain is facing trial for the commission of offence under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and 342, P.P.C. The prosecution case is that the applicant along with seven other persons robbed away buffaloes which were being grazed by the complainant Abdul Jabbar and his nephew Sulleman. The applicant is specifically named in the F.I.R. along with two other persons; five culprits are not named in the F.I.R. Mr. Solangi has submitted that except the appearing of name of the applicant in the F.I.R. and the evidence of complainant Abdul Jabbar and his nephew Sulleman there is no other evidence against the applicant. He has further submitted that the buffaloes were not recovered from the possession of the applicant. He was arrested in this case on 2-5-2005 and there is no likelihood of the conclusion of trial in near future therefore, he is entitled to be released on bail. He has contended that mere fact that the name of the applicant is mentioned in the F.I.R., is not sufficient for refusal of bail to him. In support of his contention he has placed reliance on a single bench order of this Court in the case of Ghulam Murtaza v. The State 1990 PCr.LJ 323, wherein while considering an application for bail before arrest, it has been observed that the mere mention of name of a person in the F.I.R., would not justify the rejection of a prayer for anticipatory bail, without consideration of the other ingredients required to be taken in view in this context. He has next placed reliance on the order of Hon'ble Supreme Court in the case of Riasat Ali and another v. The State PLD 1977 Supreme Court 480, wherein it has been observed that an accused, unless found guilty by competent Court is presumed to be innocent and holding a person in custody for nearly four years without any prospect of even commencing trial strongly militates against such concept and amounts to abuse of process of Court. He has further placed reliance on another Single Bench order of this Court in the case of Shabbir and another v. The State 2003 PCr.LJ 1521, wherein the principle has been reiterated that a person is presumed to be innocent unless proved guilty. On the other hand learned State counsel has stated that admittedly the applicant is named in the F.I.R. and has been implicated for committing dacoity. Although he was formally arrested on 2-5-2005 from Central Prison Sukkur where he was confined in another case, but he appeared before the Court on 4-12-2004 being shown as absconder and charge was also framed. He has stated that no witness has been examined so far. I have considered the contention raised by Mr. Solangi and the judgments on which he has placed reliance. At the very outset I would like to observe that normally any judgment or order by superior Courts in a criminal case is not to be taken as a precedent, particularly when the finding is based on consideration of the facts in that particular) case. Only such judgments/orders in criminal cases have the fore of precedent, in which some principle of law has been enunciated or any law has been interpreted. Seldom facts of two criminal cases are similar and therefore a great caution is required in following the judgments in criminal cases. On perusal of the order in the case of Ghulam Murtaza (supra) I have found that an application for pre-arrest bail was submitted, wherein a plea was taken that the accused was somewhere else at the time of commission of offence, which would make it impossible to believe that he could have committed the offence. In this context it was observed that this fact cannot be brushed aside mainly on the ground of the applicant having been named in the F.I.R. It was observed that certificate issued by the Superintendent Jail that accused had visited his prison at a particular time on the date of occurrence, was supported by the statement of Deputy Superintendent Jail on oath. Consequently a tentative assessment was made to the effect that it was not possible for the accused to reach Ratodero from Central Prison Karachi at the time of incident. Thus the ratio of judgment is that merely because name of an accused person appears in F.I.R., an application for bail before arrest is not to be rejected on this ground alone but all the facts are to be considered for the purpose of granting bail or otherwise. There can be no cavil to the proposition, which is to be considered in the context of the facts prevailing in each case. As already observed earlier, in the cited case it was not possible for accused to reach the place of incident situated at Ratodero at 12-15 a.m. when he was present at 5-30 p.m. at Central Prison Karachi. In the present case there are no such circumstances and the complainant as well as his nephew Sulleman have fully implicated the applicant in the commission of the offence. In the case of Riasat Ali v. The State, the Hon'ble Supreme Court found that an accused was in custody for a period of one year and nine months. The Court was lying vacant and there was no probability of posting of Judge in the Court in near future with the result that there was no possibility of conclusion of trial for a period of about four years and in the background of these facts it was found that the accused was entitled to be released on bail. In the present case the accused has been arrested on 2-5-2005. He was present before trial Court being in custody on 4-12-2004. Charge has been framed and the Court, where the case is proceeding is not lying vacant, therefore, in the context of these facts, the judgment is not a precedent to be followed. In the third case Shabbir v. The State (supra) the learned Single Judge of this Court sitting at Larkana granted bail for the reason that accused was in custody from 3-1-2001 and up to 26th of May, 2003, trial had not commenced. The directions were given by the High Court earlier for examining the material witnesses within a period of three months and the trial Court had failed to comply with the directions and the charge was framed very recently. In the cited case in spite of direction given by the High Court to examine the material witnesses the trial Court had failed to examine them and therefore on consideration of this fact the bail was granted. In the present case there are no such circumstances. It has not been shown that there was any direction by this Court to trial Court for examining the material witnesses within specified time. Thus none of the judgments relied upon by Mr. Solangi can be treated as a precedent for the purpose of present bail application. In the present case the applicant has been fully implicated by complainant and P.W. Sulleman who were only witnesses present at the time of incident. The instances of robberies and dacoities are increasing at alarming rate and therefore no liberal view can be taken in such matters. The grant of bail in such matters is not a matter of right but is a discretion of the Court which is to be exercised, keeping the circumstances in view. I am of the opinion that it is not a fit case for grant of bail and consequently bail is rejected. However, the learned trial Court is directed to expedite the conclusion of trial. H.B.T./K-24/K Bail refused.