2001 PLP 774 (YLR)

M. Ismail Memon, State Counsel. This incident is said to have taken place somewhere between 12th and 14th September, 1995. According to F.I.R., lodged on 18-9-1997, deceased Muhammad Nawaz, aged about 31 years, went to see his friend in Bawat village but he did not turn up. Later on, dead bodies of Muhammad Nawaz and his friend Abdul Majeed were found in Malir river packed in a sack, which were handed over to Edhi Trust and there the parents of the deceased identified the dead bodies. After two years complainant was informed on 11-9-1997 that applicant had been arrested by Range Investigation Cell and he has admitted his guilt before police stating that he alongwith his friend namely Beral by tiring from Klashnikov had killed Muhammad Nawaz and his friend Abdul Majeed and thrown their dead bodies into the river.

2. It is the case of prosecution that the applicant had led police to the place where they had thrown the dead bodies into river. Since then the applicant is in custody and it is stated `by the learned counsel for applicant that not a single witness has been examined and even the charge has not been framed.

3. Learned counsel for applicant argued that it is a case of no evidence and the confession allegedly made by the accused before police is inadmissible in evidence in view of provisions of Articles 38 and 39 of Qanun-e-Shahadat. He contended that the case is also not covered by Article 40 of Qanun-e -Shahadat as the place pointed out by the accused was already known to police and nothing new was discovered. He further submitted that the accused is in custody for .a period of three years and eight months without trial and he is entitled to grant of bail on the point of statutory delay.

4. Learned State counsel conceded to grant of bail on the point of statutory delay, however, he opposed the bail on merits.

5. Admittedly, the instant F.I.R. had been lodged after a period of two years. The foremost evidence against the applicant is that he confessed his guilt before police after his arrest and secondly he led the police to the place where he and his accomplice had thrown the dead bodies. The admission before police falls within the mischief of Articles 38 and 39 of Qanun-e-Shahadat and the ground agitated by the defence counsel on this point cannot be turned down. However, the ground that the effect of pointation alone by the accused in presence of police would not squarely fall within the definition of Article 40 of Qanun-e-Shahadat will essentially be a matter of argument at the conclusion of trial. The circumstances of the case would nevertheless call for further enquiry in the above background.

6. Moreover, the accused is in custody for a period of three years and eight months without trial. No doubt there may be other cases against him but incarceration without trial for an indefinite period would be against the spirit of fair dispensation of justice. In the peculiar circumstances of the case it is a good ground for grant of bail within the meaning of third proviso to section 497(1), Cr.P.C. specially when the State has no objection to grant of bail on this point.

7. Consequently, the application is allowed. The applicant may be released on furnishing surety in the sum of.Rs.3,00,000 and executing P.R. Bond in the like amount to the satisfaction of the trial Court. H.B.T./A-202/K Bail granted.