2011 YLR 2731 (PLP)

SALMAN HAMID, J.

Bakhsh Ali alias Bakhsho, son of Faiz Muhammad Joyo (respondent No.1) was granted bail by the Additional Sessions Judge, Khairpur in Sessions Case No.381 of 2007 (the Case). Liaquat Ali, son of Arz Muhammad Joyo (Applicant) after grant of such bail filed the present application under section 497(5), Cr.P.C. for it's cancellation.

2. According to the applicant, the respondent No.1 was not entitled to bail inasmuch as he is a hardened criminal and that the benefit of subsection (b) newly added Proviso to section 497, Cr.P.C. brought about in April of this year by Act No.VIII of 2011 could not have been extended to him (respondent No.1) inasmuch as that no delay had been caused by the applicant in pursuing the Case and also because of the fact that delay, if any, was occasioned because of the respondent No.1 himself.

3. I have looked into the Case minutely. It would transpire that F.I.R. under section 302, P.P.C. in Crime No.56 of 2006 at Police Station, Gambat had been lodged by applicant. It was reported on 21-5-2006 that his brother, Lal Bakhsh had been killed after he received pistol shots on his abdomen from Khan Muhammad and Zawwar Hussain and from Pistol of the respondent No.1 Chalian in the Case was submitted on 6-9-2007, whereas the charge was framed on 10-10-2008. It would further be evident from the record of the Case that the respondent No.1 was in custody since 26-8-2007 Various diaries attached with the present application would show that from the date of framing of the charge on 10-10-2008 till the date of passing of order dated 28-6-2011 whereby the respondent No. 1 had been enlarged on bail, save for few and that too prior to the amendment under point, on most of the occasions adjournments had been sought either by the co-accused or by the prosecution or that the court where the case is pending remained vacant few were occasioned because of applicant.

4. At the time of passing of order dated 28-6-2011 the learned IIIrd. Additional Sessions Judge, Khairpur Mir's, sought the report of the respondent No.1 from the Central Prison-I, Sukkur and from the S.H.O., Police Station, Gambat. The report from the Central Prison-I, Sukkur disclosed that during confinement of the respondent No.1 his conduct remained satisfactory. The report from the Police Station, Gambat disclosed that the respondent No.1 is only booked in the present case. Other than this the respondent No.1 has no criminal record.

5. Nowhere it was alleged that the respondent No.1 is a hardened desperate or dangerous criminal and/or a terrorist. It is also nowhere alleged or brought on record that the respondent No.1 was a previously convicted offender for an offence punishable with death or imprisonment for life.

6. For what has been discussed herein above, and by virtue of the Code of Criminal Procedure (Amendment) Act, 201.1, which provides for statutory bail and also keeping in view the record of the respondent No.1 and the record of the case it has come on record that respondent No. 1 is not a hardened criminal and/or 'a terrorist that on most of the occasions the case could not be proceeded and/or progressed not because of respondent No.1 but because of the reasons which were beyond his control. The respondent No 1 is behind bars for almost three years i.e. beyond the threshold of two years as stipulated in Act VIII of 2011 and also the fact that the adjournments those have been mentioned in the above case are not attributed to the respondent No.1.

7. For what has been observed above, the present Criminal Miscellaneous Application is found to he merit less and is therefore, dismissed. H.B.T./L-5/K?????????????????????????????????????????????????????????????????????????? Application dismissed.