1994 P Cr (PLP)

Sahibzada Farooq Ali for Petitioner. Ch. Pervaiz Aftab for the Complainant. Zafar Mehmood Anjum for the State. A case under section 302/148/149, P.P.C. was registered against the petitioners and others namely Mushtaq, Latif and Bashir for the charge of committing the murder of Shamera deceased vide F.I.R. No.287/91 on 30-9-1991 with Police Station Gago, Burewala.

2. The allegations against the petitioners as contained in the F.I.R. are that they and one Mushtaq armed with guns alongwith Latif alias Tiffa and Bashir empty-handed in the night between 29-9-1991 and 30-9-1991 in furtherance of their common intention to commit the murder of Shamera deceased caused him fire-arm injuries with their respective weapons.

3. The motive for the occurrence as stated was that the allotment of land in favour of Rashid etc. petitioners was disputed by one Mst. Sakeena before the Revenue Authorities and petitioners finally lost the case before the Board of Revenue, Lahore. Ameer, father of the complainant as attorney of Mst. Sakina and Shamera deceased his father-in-law were supporters of Mst. Sakina against the petitioners, who having borne grudge against the deceased, committed his murder.

4. The petitioners have moved this Court for grant of bail after refusal of the same by the learned Additional Sessions Judge, Burewala vide orders dated 11-3-1993 and 9-9-1993 with the observation that opinion of Police Officer regarding the innocence of the petitioners was not binding on the Court and that material available on record sufficiently connects them with the commission of offence.

5. The bail is urged on the grounds that there being sufficient scope for further inquiry into the guilt of the petitioners, they by virtue of section 497(2), Cr.P.C. are entitled for the concession of bail. The learned counsel in support of his arguments submitted that the petitioners were declared innocent by Muhammad Latif D.S.P. and thereafter S.P. Crimes Branch, Lahore recommended them to be discharged from the case but the learned Magistrate at Burewala vide order dated 20-9-1993 declined to pass the discharge order with the observation that after submission of challan, the learned trial Court was the proper forum to be moved. He contended that it being a night time occurrence, the identification of the culprits vis-a-vis their role, in the torch light, as claimed by the P.Ws., was not possible. He next argued that as per prosecution's own version, not the deceased but Ameer father of the complainant and general attorney of Mst. Sakeena was the real target of the petitioners.

6. The second limb of the grounds for the grant of bail was that despite expiry of statutory period provided under section 497(1), Cr.P.C. the challan has not yet been placed before the Court and the private complaint filed by Ghulam Abbas complainant against the petitioners and others namely Mushtaq, Latif and Bashir who were named in the F.I.R. but not challaned was still at preliminary stage, hence even after submission of challan, the case was not ripe for commencement of the trial for want of disposal of the complaint.

7. The learned counsel appearing on behalf of the complainant argued that the petitioners were named in the promptly lodged F.I.R. and that there was ample evidence on the record to connect them with the commission of crime. He submitted that mere opinion of the Police Officer with no supporting material was of no consequence. He, however, without justifying the delay in the submission of the challan and commencement of the trial even after expiry of the statutory period banking upon proviso to 3rd proviso to section 497(1), Cr.P.C. opposed the grant of bail on statutory grounds.

8. Without adverting to the merits of the case and entering into the question of guilt or innocence of the petitioners vis-a-vis the scope of further inquiry under section 497(2), CrY.C. which provision of law does not leave it to the discretion of the Court to withhold the concession of bail to a person, an A accused of a non-bailable offence, if his case fulfils the essential .conditions enumerated thereunder the petitioners by virtue of 3rd proviso to section 497(1), Cr.P.C. have earned a statutory right of grant of bail. The petitioners were arrested on 6-12-1991 and despite lapse of a period of more than two years, even the challan has not yet reached to its destination. The case otherwise is not matured for trial, due to the pendency of the private complaint. The concession of bail on the statutory ground can only be refused to an accused when some material is brought on record showing that he was desperate, hardened and dangerous criminal but in absence of any such material, the bail on statutory ground cannot be withheld. The act per se of the petitioners in absence of any other material, does not lead to the conclusion that they were dangerous, desperate ` or hardened criminals, disentitling themselves to the concession of bail, The statutory right of bail cannot be ordinarily taken away with the application of embargo placed on through 3rd proviso to section 497(1), Cr.P.C. without positive proof of condition embodied therein. The petitioners having been found entitled to the concession of bail on statutory ground are directed to be released on bail subject to their furnishing bail bonds in the sum of Rs.50,000 each with two sureties each in the like amount to the satisfaction of learned trial Court. N.H.Q./R-119/L Bail allowed.