2017 PLP 306 (YLRN)

SAYYED MAZAHAR ALI AKBAR NAQVI, J.

By means of instant petition filed under section 497, Cr.P.C, Muhammad Younis petitioner has sought for his post-arrest bail in case FIR No.839/2012, dated 11.07.2012, offence under Sections 302, 201, 176, 34, P.P.C., registered with Police Station Batala Colony, Faisalabad.

2. Prosecution story in brief, as per contents of the crime report, is that Shabbir brother of the complainant was working at the hotel of Shaukat Ali. In order to make arrangements for marriage of Shabbir, he went to take money, which he had to take from Shaukat Ali, however, he did not return back. Thereafter, the complainant along with Zulfiqar Ali and Muhammad Ashraf went towards Shabbir Ahmed, who told that his brother had been murdered. When the complainant along with his other relatives reached Muhammadi Chowk, Shaukat alias Nawaz told that on 09.07.2012 at sham-vela a scuffle had taken place between brother of the complainant and Muhammad Younas Bhatti, as well as, Shaukat Ali and two unknown accused persons. Thereafter, Muhammad Younas Bhatti inflicted two chhuri blows upon brother of the complainant, which landed at his abdomen and proved fatal.

3. Learned counsel for the petitioner while opening his arguments contends that the petitioner is innocent and has falsely been roped in the instant case by the complainant against the actual facts and circumstances. Learned counsel vehemently contends that the FIR was lodged with a delay of two days for which no plausible explanation has been rendered by the prosecution. Further contends that there is no eye-witness of the occurrence while the statement of the complainant consists of hearsay. It is vigorously argued by learned counsel for the petitioner that although reported prepared under section 173, Cr.P.C. was submitted way back on 17.12.2012, however, not a single witness has been recorded so far. Further contends that in absence of any direct/ indirect evidence available on record, prosecution case against the petitioner squarely calls for further inquiry into his guilt falling under the provisions of subsection (2) of section 497, Cr.P.C. It is lastly argued that the petitioner is behind the bars since the date of his arrest and the investigation being complete his person is no more required by the police, therefore, he is entitled to the concession of post-arrest bail.

4. On the other hand, learned Deputy Prosecutor General, Punjab assisted by learned counsel for the complainant, opposes this petition with the submissions that the petitioner is named in the crime report with the role of inflicting chhuri blows on the abdomen of Shabbir brother of the complainant, who subsequently succumbed to the injuries. Learned counsel for the complainant contends that the complainant had no reason to falsely involve the petitioner in the instant case. Finally it is argued that as case against the petitioner entails capital punishment; therefore, he is not entitled to the concession of bail.

5. I have considered the arguments advanced by learned counsel for the petitioner, learned counsel for the complainant, as well as learned Deputy Prosecutor General and gone through the record available on file.

6. Nevertheless the petitioner is named in the FIR; however, admittedly the case was registered with a delay of about two days for which no plausible explanation has been rendered by the prosecution. An important aspect of the case is that not only statement of the complainant is based upon hearsay rather there is no eye-witness of the occurrence, who had witnessed the mode and manner of occurrence. An astonishing aspect of the case is that during the course of arguments the Court was apprised that the occurrence had taken place on 11.07.2012 and since then the petitioner is behind the bars while challan in the case was submitted on 17.12.2012, however, not a single witness has been recorded so far. Hence, detention period of the petitioner is spread over more than four and a half years without trial. Therefore, in view of amendment made in section 497, Cr.P.C. vide Act VIII/2011, dated 21.04.2011, the petitioner is also entitled to the relief on the ground of statutory delay.

7. Admittedly fair and early trial is a constitutional right of every accused and the same is also protected under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the case of Abdullah v. The State and another (1985 SCMR 1509). Moreover, no one can be put to gallows for an indefinite period without his fault. The investigation has already been completed and person of the petitioner is no more required by the police for further investigation.

8. For the foregoing facts and circumstances, this Court is persuaded to allow this petition as a consequence whereof Muhammad Younis/petitioner is admitted to bail after arrest subject to his furnishing bail bonds in the sum of Rs.2,00,000/- with two sureties each in the like amount to the satisfaction of the learned trial court.

9. Before parting with the order this Court has observed with much concern that it is an old matter, therefore, the framed trial court is directed to expedite the petitioner's trial and conclude the same preferably within a period of two months of the receipt of this order. Moreover, it is made clear that in case the petitioner does not cooperate in early conclusion of trial, the prosecution would be at liberty to file cancellation of his bail, if so advised. WA/M-58/L Bail granted.