2010 PLP 1752 (MLD)

HAFIZ ABDUL REHMAN ANSARI, J.

Through this petition, the petitioners seek post-arrest bail in case F.I.R. No.134 of 2008 dated 23-8-2008 registered at Police Station Jalilabad Multan under sections, 392, 411, 1 P.P.C. on the complaint of Zeshan Mehmood, complainant.

2. Brief facts as narrated in the F.I.R. are that in the night between 17/18-8-2008 he was going from his house towards mosque when Tayyab Ahmad alias Makki and Younas accused/petitioners along with Zia Ahmad alias Chand while riding on a motorcycle, waylaid the complainant and his companion Yasir Azad at gunpoint and snatched three cell phones and cash amount of Rs.600 from the complainant and friend, hence,, this F.I.R.

3. Learned counsel for the petitioners submits that initially case was registered against the petitioners and other co-accused under section 356/34, P.P.C. but later on, offences were converted into sections 392/411, P.P.C.; that the petitioners were on physical remand for 3 days but no recovery was effected from them; that the petitioners were arrested in this case on 7-8-2008; that the petitioners are in the judicial lockup since 11-9-2009; that challan in this case has been submitted in the trial Court on 19-1-2009; further submits that not a single witness is recorded by the learned trial Court.

4. Learned Deputy District Public Prosecutor vehemently opposes the grant of bail on the ground that recovery was effected from them in case F.I.R. No.135 of 2008 registered with Police Station Bohar Gate; that the occurrence is day-light: that the petitioner is found guilty in the police finding; that the offence does not fall within the Prohibitory Clause of section 497, Cr.P.C., therefore the petitioners are not entitled to the concession of bail.

5. I have heard the learned counsel for the parties at length and perused the record.

6. Initially case was registered against the petitioner and other co-accused under section 356/34, P.P.C. but later on, offences converted into sections 392/411, P.P.C. The petitioners are behind the bars since 7-8-2008. Although challan is submitted in the Court but no progress has been made and no prosecution witness is recorded. No recovery was effected from the petitioner. Only recovery was effected in F.I.R. No.135 of 2008 which was registered at Police Station Bohar Gate, Multan. There is 7 days' unexplained delay in lodging the F.I.R. False implication of the, petitioners cannot be ruled out. Prosecution submitted the challan on 19-1-2009 since that there is no progress and no statement of any prosecution witness is recorded. The petitioners cannot be kept behind the bars as a punishment. That in spite of best efforts of the Court prosecution evidence could not be recorded. The petitioners were allowed bail in case F.I.R. No. 135 of 2008 dated 23-8-2008 vide order dated 15-9-2009, by the learned Additional Sessions Judge, Multan. Recovery effected from the petitioners in that case is not useful for the prosecution in this case. It cannot be used against the petitioners in this case. The petitioners are previously non-convict. Mere registration of other case, is no ground for refusal of bail unless and untill some one is convicted and sentenced in other case.

7. Resultantly, this petition is accepted and the petitioners are admitted to post-arrest bail subject to their furnishing bail bonds in the sum of Rs.50,000 each with one surety each in the like amount to the satisfaction of the learned trial Court. H.B.T./T-35/L????????????????????????????????????????????????????????????????????????????????????????????????? Bail granted.