1987 PLP 1232 (MLD)

(b) Criminal Procedure Code (V of 1898)

S. 497--Bail--Appreciation of evidence--Only tentative assessment, has to be made at bail stage.--(Evidence]. M. Shafi Khan for Applicant. Rashid Tariq for the State. This is an application for bail on behalf Abdullah; alas Haji Ishaque who is being tried for the offences punishable under section 364/511 read ' with 17(3) of Offence Against Property (Enforcement of Hudood) Ordinance, 1979. It is contended by Mr. M. Shafi Khan that applicant was granted bail by the learned Sessions Judge on merits but Additional Sessions Judge by dated 28-12-1986 cancelled his bail. It is further argued that case has proceeded before the trial Court where complainant and other witnesses has not supported the case. Mr. Rashid Tariq learned counsel for the State has opposed the bail and submitted that accused has misused the liberty and concession of bail as he remained absent for so many hearings. It is contended that even otherwise applicant is not entitled to bail. This bail application came for hearing on 4-1-1987 when notice was issued to him as to why his bail which was granted on merits should also not be cancelled. The learned Additional Sessions Judge in his order while rejecting the bail stated as under: - "Heard defence counsel and D.P.P. The accused had abused privilege of Hari and remained absent on many dates hence his bail was cancelled. Case is also not proceeding due to absence of one or the other accused. In such circumstances I refuse bail to him and reject his application:" In support photo copy of medical certificate issued by Dr. Ishfaq Hussain in which it is stated that applicant was advised rest. A certificate issued by Kumar Clinic & Nursing Home Karachi, it is shown that applicant was suffering from virs fever. This is not a such illness which prevented the applicant from appearing in the Court, therefore, the learned Additional Sessions Judge has rightly not relied on such certificate and declined the bail. I have gone through the order, dated 4th July, 1985 of the learned Sessions Judge, Thatta, whereby he granted the bail to the applicant on merits. This is a case of robbery of 3 lac rupees in the District Headquarter of Thatta. Application was arrested and put to identification parade where he was identified by complainant and other witnesses. The robbed money was also secured from him. Learned Sessions Judge has stated in his order that identification held by the police after one month of the incident has no evidentiary value. At bail stage only tentative assessment is made. The observation so made which prejudice the case of prosecution are not called for. The learned Sessions Judge has further considered one of the ground that applicant remained in jail for 4 months and case is not likely to proceed. This ground was hardly available in view of Provision 3 of section 497, Cr.P.C. According to which accused is entitled to bail as matter of right when he remains in jail for the statutory period as mentioned in the provision. I am of the view that case of the applicant was not fit for bail on merits. The contention of Mr. Samo is that complainant and witnesses have not supported, cannot be considered at this stage, as it will prejudice the case. Moreover the identification was held in the presence of Magistrate and observation on the evidence so recorded will prejudice the case. Moreover, the point is not taken before trial Court. Application is dismissed. M.Y.H./A-74/K Bail refused.