1999 P Cr (PLP)

(c) Criminal Procedure Code (V of 1898)‑‑‑ ‑‑‑‑S. 497‑‑‑Penal Code (X‑V of 1860), S.395‑‑‑Bail, grant of‑‑‑Accused was named in the F.I.R., but Investigating Officer found him innocent during investigation‑‑‑Prosecution Submitted written request for discharge of accused‑‑ Challan was submitted in Trial Court wherein accused had been placed in Column No.2‑‑‑Mere incorporation of the name of accused in the F.I.R. was not enough to withhold the concession of bail‑‑‑Accused was allowed bail in circumstances. Mehar Ahmad Bakhsh Bharwana for Petitioner. Syed Zulfiqar Ali Bokhari, Asstt. A.‑G. for the State. M.R. Raza for the Complainant. Date of hearing: 1st December, 1998. Muhammad Khan complainant got recorded F.I.R. No.193, dated 28‑3‑1998 at Police Station Saddar Jhang under section 395, Pakistan Penal Code with the allegation that on the night falling between 20/21‑3‑1998 Ghulam Abbas petitioner‑accused armed with Sota alongwith his co‑accused Mumtaz Hussain armed with .12 bore gun, Ashraf armed with revolver as well as Riaz Hussain, Muhammad Nawaz, Zafar and Abdus Sattar armed with Sotas trespassed his house at 1‑00 a.m. while they were sleeping. Mumtaz Hussain aimed the fire‑arm who was objected to by his maternal‑uncle Sher Muhammad who was injured by all the accused persons. The ear rings were removed from the ears of Mst. Shamim. Sher Muhammad was medically examined‑ and the Medical Officer found the injuries on his person. Ghulam Abbas was arrested on 4‑5‑1998 whose bail application has been dismissed by both the learned lower Courts and he has filed this petition before this Court for his admission to bail.

2. I have heard the learned counsel for the parties as well as the learned Assistant Advocate‑General for the State and gone through the record before me. It is proper to record that on 18‑5‑1998 the police submitted that written request before the Duty Magistrate for the discharge of Ghulam Abbas who passed the order under section 167(2) of the Code of Criminal Procedure to place the matter before the learned Area Magistrate on 21‑5‑1998 and sent him to the judicial lock‑up for three days. The police completed the investigation and submitted the challan by placing Ghulam Abbas petitioner in Column No.2 who was declared innocent and was placed at the mercy of the Court. The learned Area Magistrate charged the accused persons on 24‑8‑1998 under section 395, Pakistan Penal Code. It is proper to express that in the charge Ghulam Abbas has not been named as the accused in terms of section 242 of the Code of Criminal Procedure as he is not named as the accused. However, when the accused were examined after the formulation of the charge, Ghulam Abbas was also examined when he pleaded not guilty. It is also proper to express that even though the accused are said to have committed the lurking house trespass by night no charge has been framed against them under the relevant penal section.

3. I have heard the learned counsel for the parties as well as the learned Assistant Advocate‑General and gone through the record before me. In my view the matter is being taken up in a perfunctory manner by the learned Area Magistrate and both the learned lower Courts have disposed of the bail application in routine without going into the merits of the case of the prosecution against Ghulam Abbas petitioner‑accused. I am tempted to express that a bail application has to be disposed of within the framework of section 49i of the Code of Criminal Procedure. As expressed above, the police submitted the written request before the learned Duty Magistrate for the discharge of Ghulam Abbas accused as no incriminating evidence could be collected. The matter was sent to the Ilaqa Magistrate and was fixed for 21‑5‑1998 vide order, dated 18‑5‑1998. Thereafter, nothing happened. Even in the challan indictment Ghulam Abbas petitioner has been placed in column No.2 after being declared as innocent and put at the mercy of the Court. Even in the charge‑sheet he is not mentioned as an accused at the appropriate place even though in the trial it is narrated that the case is pending against Ghulam Abbas and others. Keeping in view the aforesaid aspects of the matter I am in full agreement with the learned counsel for Ghulam Abbas petitioner‑accused who laid the emphasis before me that the involvement of Ghulam Abbas petitioner‑accused is a question of further inquiry. An accused against whom the prosecution has not been able to collect any material who is desirous to get him discharged need not be retained in the judicial lock‑up as his said retention would be simply punishment without trial and conviction. It is pertinent to mention that even though the police has attached the material with the judicial file that some cases are pending against Mumtaz Hussain and Muhammad Nawaz co‑accused, no list has been attached with respect to Ghulam Abbas petitioner‑accused about his previous involvement in any other criminal case. I, therefore, do not agree with the learned Assistant Advocate‑General who canvassed that Ghulam Abbas is named in the F.I.R. and he is not entitled to be admitted to bail. I would express that mere incorporation of the name of the accused in the F.I.R. is not enough to withhold the concession of bail.

4. For what has been said above, I accept this application and admit Ghulam Abbas petitioner‑accused to bail in the sum of Rs.50,000 (Rupees fifty thousand only) with one surety in the like amount to the satisfaction of the learned Area Magistrate with the direction to appear before the learned trial Court on every date of hearing failing which the learned trial Court may cancel his bail. Q.M.H./M.A.K./G‑111/L Bail allowed.