2012 PLP 358 (YLR)

SARDAR TARIQ MASOOD, J.

Muhammad Nawaz, petitioner seeks bail after arrest in case F.I.R. No. 1008 dated 29-6-2010 registered under sections 397/ 412, P.P.C. at Police Station Nishatabad District Faisalabad.

2. Briefly the prosecution case mentioned in the F.I.R. is that the petitioner along with 11 others entered into the house of the complainant and committed dacoity, during which, one of the assailants inflicted injury on the person of the complainant. It is also mentioned in the F.I.R. that the said dacoits also entered into adjoining houses and committed dacoity and took away gold ornaments and other valuable articles.

3. Learned counsel for the petitioner contends that allegedly the occurrence took place on the night between 6/7-4-2010 whereas the F.I.R. was chalked out on 29-6-2010; that in the F.I.R., it is mentioned that after one month, the petitioner along with five others made extra-judicial confession before the complainant; that even after the alleged extra-judicial confession, the F.I.R. was chalked out after one month and 20 days; that the said extra-judicial confession was joint; that no identification parade was held in this case; that the petitioner is behind the bars for the last more than one year and three months but not a single witness was examined during this period.

4. On the other hand, learned D.P.-G. for the State has opposed this bail application while arguing that the petitioner along with five others made extra-judicial confession before the complainant and the witnesses namely Khalid Mehmood and Muhammad Khan; that during investigation, .12 bore gun, one pair of shoes and Rs.5,000 was recovered on the pointation of the petitioner.

5. Heard. Record perused.

6. The delay in lodging the F.I.R. is a circumstance which is not explained by the prosecution. It is the case of the prosecution that after one month of the occurrence, the petitioner along with five others made extra-judicial confession before the complainant but surprisingly even thereafter the complainant lodged the F.I.R. with delay of more than one month and 20 days. The recovery of gun, pair of shoes and Rs.5,000 will be appreciated by the learned trial Court after recording evidence as presently there is no identification memo of the said articles on the file. Due to the above-mentioned reasons, the case of the petitioner calls for further inquiry. The petitioner was arrested in this case on 19-7-2010 and almost more than one year and three months have passed but the trial has not been concluded. According to Act No. VIII of 2001, following amendment in section 497, Cr.P.C. was made:- "Provided further that the Court shall, except where it is of the opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf, direct that any person shall be released on bail. (a) Who, being accused of any offence not punishable with death, has been detained for such offence for a continuous period exceeding one year or in case of a woman exceeding six months and whose trial for such offence has not been concluded: or (b) .. "Provided further that provisions of the foregoing proviso shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Court, is a hardened desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life" The order sheet produced by the learned counsel for the petitioner indicates that the delay in this case has not been occasioned by any act or omission on the part of the petitioner or any other person acting on his behalf. The word 'shall' used in this amendment indicates that if the trial of any person has not been concluded within that stipulated period, then he became entitled for the concession of bail as a matter of right, if the delay is not occasioned by him or any person acting on his behalf. There is a proviso to the said amendment, according to which, this concession will not be given to a previously convicted offender or the person who in the opinion of the court, is a hardened, desperate or dangerous criminal. According to the learned D.P.-G. for the State, the petitioner has no previous criminal record and the trial in this case has not been delayed due to any act or any omission on the part of the petitioner.

7. Consequently, this petition is allowed and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.2,00,000 (Rs.Two lacs only) with two sureties in the like amount to the satisfaction of learned trial Court. H.B.T./M-373/L Bail granted.