2001 PLP 293 (YLR)

Sardar Sher Afzal for Applicant, Arshad Lodhi. A.A.-G. for the State. The present applicant is seeking bail in Crime No.247 of 1999 under section 395/34, P.P.C. registered with Police Station Korangi Industrial Area. He moved bail application before the trial Court but without success, hence this bail application. On 18-9-1999 the complainant Muhammad Saleem registered F.I.R., stating therein that he is Assistant Manager in some limited Company and according to him on 17-9-1999 at 10-45 when he went to near Red Godown Landhi in vehicle and after putting the 40 bags sent by company, he found 3/4 boys were sitting and appeared before the vehicle and the same was stopped and after the checking two accused started Trailor and went away. Thereafter, complainant came back factory and informed the owner of the factory and F.I.R. was registered. According to him, culprits have been seen by him and can be identified on seeing. Learned counsel for the applicant has argued that the present applicant is said to have been arrested on 4-10-1999 and has been subjected to identification test parade on 20-10-1999 and there is no recovery from his possession. There is no explanation in holding identification parade after inordinate delay. Learned A.A.-G. for State has argued that the trial Court may be directed to examine at least one witness and thereafter the present applicant will be at liberty to move fresh bail application for grant of bail. I have considered the arguments rendered by the learned counsel for the parties and have gone very carefully through the material on record and impugned order. Learned Judge in his impugned order has mentioned that all the proper steps have been taken to expedite the conclusion of the trial but the trial could not be concluded on account of unavoidable reasons and in the said order there are no specific reasons with regard to unavoidable reasons and if once the trial Court is directed to examine the witness and thereafter the accused is allowed to repeat the bail application, it will not serve the purpose in view of the above fact that the present applicant is behind the bars since 4-10-1999 and there is no fault at his door towards the delay. It is the duty of prosecution to conclude trial but it appears that the prosecution is helpless, besides the evidence against the applicant is identification parade which has been held on 20-10-1999 after. 16 days and no explanation is being furnished by the prosecution with regard to delay. No role has been ascribed during the identification parade by the complainant that what role was committed by the present applicant during commission or offences when he claims to have seen the present applicant, yet no role has been describe during the identification parade. Reference may be made of the case reported in 1995 SCMR 127, 128 (Mehmood Ahmed and 3 others v. The State wherein Honourable Supreme Court has held that if the role has not been described by the person who claims to have seen the accused by committing offence the identification parade losses the sanctity and moreover, the identification parade has been held after 16 days and at the moment the case of the present applicant calls for further enquiry, particularly in view of the fact that he is behind the bars since 4-10-1999 and the trial Court has expressed inability in concluding trial and no reasons have been assigned with regard to unavoidable reasons. Basic principle is bail not jail as held by Honourable Supreme Court in PLD 1995 SCMR 34,

37. If bail is granted by mistake, there is compensation as the accused can be awarded conviction but if the case results in acquittal after 6/5 years and then there is no compensation as held by the Honourable Supreme Court. It has been held that .in that event "Bird called quid pro quo" has flown out of the "cage" means no compensation. In the present case the prosecution has collected the weakest type of evidence against applicant in the shape of identification parade which too has been held after inordinate delay. In view of the aforementioned circumstances and legal position has present applicant is granted bail subject to furnishing surety in the sum of Rs.2,00,000 (Rupees Two Lacs Only to the satisfaction of trial Court. H.B.T./M-190/K Bail granted.