2009 PLP 464 (YLR)

MAZHAR HUSSAIN MINHAS, J.

Petitioners Muhammad Iqbal and Mureed Hussain and seeking post-arrest bail in case F.I.R. No.139 dated 22-3-2007 under sections 395/458/412/380/201, P.P.C. registered at Police Station Jehania, District Khanewal.

2. Briefly stated the facts of the prosecution case are that on the night between 8/9-3-2007 Faiz Rasool complainant was sleeping in his cattle shed in the area of Chak No.141/10-R. At about 1-00 a.m. 10/11 persons out of whom five were armed while remaining six were empty handed, trespassed into his Haveli. They took him into a room at pistol point and tied there. Then they called two Mazda Dallas on telephone, put cattle and goats valuing about Rs.2,50,000 in them and went away towards Multan Road. The complainant raised alarm upon which P.Ws. Muhammad Alam and Muhammad Nawaz were attracted there who untied him from the cot. The accused took out an amount of Rs.1500 also from his pocket.

3. Learned counsel for the petitioners contends that there is an inordinate delay of 14 days in lodging the F.I.R. for which no explanation has been offered by the complainant. The petitioners are not named in the F.I.R. and have been subsequently implicated by the complainant in his supplementary statement. No identification parade has been held during investigation. Recovery of a buffalo from joint possession of both the petitioners has been shown, therefore, it is inadmissible in evidence Lastly, it has been contended that co-accused Khadim Hussain having identical case, has been allowed bail by learned Additional Sessions Judge, therefore, the petitioners are also entitled to the same concession under the principle of consistency.

4. Learned D.P.G. for the State has vehemently opposed the bail application and has contended that petitioners are previous record-holders and are involved in as many as 11 cases of similar nature, therefore, they are not entitled to concession of bail.

5. As per F.I.R., the occurrence took place on 9-3-2007 at 1-00 -a.m. whereas the report was lodged on 22-3-2007 at 7-00 p.m. and, as such, there is delay of more than 13, days in registration of case. Initially complainant lodged report against unknown accused but subsequently he implicated the petitioners in his supplementary statement recorded more than two months after the occurrence without any explanation as to how he came to know about their involvement in the commission of offence. Record reveals that the petitioners were arrested in another case F.I.R. No.48/2007 under section 395, P.P.C. registered at Police Station City Duniyapur, District Lodhran and were released on bail on 13-7-2007. On the same day, they were arrested in the present case. After their arrest identification parade was not conducted to establish their identity. During interrogation a buffalo is shown to have been recovered from joint possession of the petitioners. Therefore, this recovery is of no legal value. On this point, reference may be made to Muhammad Bashir alias Pervaiz and another v. The State (2005 PCr.LJ 1135). In view of the above, petitioner's case falls within the ambit of section 497 (2), Cr.P.C. requiring further inquiry.

6. As regards the involvement of petitioners in other cases, record transpires that six cases under section 411, P.P.C, one case under sections 379/411/215, P.P.C. one case under section 380, P.P.C. and one case under section 13 Arms Ordinance stand registered against them in Police Station Khan Garh, District Muzaffargarh. In all these cases, they have been admitted to bail. Besides these cases a case under section 395, P.P.C. is registered against them in Police Station City Dunyapur, District Lodhran. In that case also, they have been allowed bail. So far they have not been convicted in any criminal case. It is established law that concession of bail cannot be withheld on account of involvement of the accused in different cases, if otherwise, case for bail is made out. In this respect reliance may be placed on Muhammad Rafique v. The State (1997 SCMR 412) wherein the Honourable Apex Court has held that involvement of accused in a number of cases of robbery is not sufficient to deprive him of his liberty.

7. In view of the above, the application is allowed and petitioners are ordered to be released on bail in the sum of Rs. 100,000 (Rupees one lac only) each with one surety each in the like amount to the satisfaction of learned trial Court. M.H./M-470/L Bail granted.