Mirza Riaz Sohail vs The State and another
This is a second post-arrest bail petition filed by the petitioner, Mirza Riaz Sohail, in a case involving allegations of fraud and forgery under Sections 489-F, 420, 468, and 471 of the Pakistan Penal Code 1860. The core legal question was whether the petitioner was entitled to bail based on the statutory ground of delay in the conclusion of his trial, pursuant to the Code of Criminal Procedure (Amendment) Act, 2011. The court observed that the petitioner had been incarcerated since August 14, 2011, and that the delay in the trial was not attributable to him, but rather to the non-production of the petitioner by jail authorities. Furthermore, the court noted that the alleged offences did not fall within the prohibitory clause of Section 497(1) of the Code of Criminal Procedure 1898. Consequently, the court held that the petitioner was entitled to statutory bail. The principle laid down is that where an accused has been detained for a period exceeding one year for a non-capital offence, and the delay in trial is not attributable to the accused, bail must be granted.
- Is an accused entitled to bail if the trial for a non-capital offence has not concluded within one year and the delay is not attributable to the accused?
- Does the offence under Section 489-F of the Pakistan Penal Code 1860 fall within the prohibitory clause of Section 497(1) of the Code of Criminal Procedure 1898?
- Can bail be granted on statutory grounds when the delay in trial is caused by the failure of jail authorities to produce the accused?
- Section 489-F, Pakistan Penal Code 1860
- Section 420, Pakistan Penal Code 1860
- Section 468, Pakistan Penal Code 1860
- Section 471, Pakistan Penal Code 1860
- Section 497(1), Code of Criminal Procedure 1898
- Code of Criminal Procedure (Amendment) Act, 2011
ORDER
' SAYYED MAZAHAR ALI AKBAR NAQVI, J. --- This is 2nd petition on the subject on behalf of the petitioner. The earlier one bearing Crl. Misc. No, 4787-B/2012 was dismissed by this Court in terms of order dated 10.05.2012.
2. By means of instant petition, Mirza Riaz Sohail/petitioner seeks his post-arrest bail in case F.I.R.
No, 320/2009, dated 12.07.2009, offence under Section 489-F, P.P.C., read with Sections 420, 468, 471, P.P.C., registered at Police Station, City Mianwali, at the instance of Major (Retd.) Dr. Muhammad Arshad Sheikh complainant/respondent No, 2.
3. Allegation against the petitioner, in brief, as per contents of the crime report is that he while committing fraud and forgery while showing forged site plans and attorney deeds qua different plots grabbed an amount of Rs, 1,35,00,000/- from the complainant. The petitioner also borrowed an amount of Rs, 10,1,50,000/- from the complainant. Thereafter the relations between the parties become strained and through arbitration he issued cheque bearing No, CD0102605, dated 22.05.2009, which on presentation, could not been-cashed. Hence, this case.
4. At the very outset, learned counsel for the petitioner submits that this petition has been filed on behalf-of the petitioner on statutory ground.
' Learned counsel for the petitioner contends that the petitioner has falsely been roped in the instant case by the complainant against the actual facts and circumstances. It is contended that there is an unexplained delay of one month and nine days in lodging the F.I.R. Learned counsel further submits that if the prosecution version is presumed to be true as it is, even then the matter pertains to civil dispute, which has been culminated into criminal liability by the complainant male fidely in connivance with the local police. Learned counsel next submits that the offence alleged against the petitioner does not fall within the prohibitory clause of Section 497(1), Cr.P.C. Leaned counsel submits that the petitioner is behind the bars since 14.08.2011 and no reasonable progress has been made in the trial without any fault on his part. It is contended that keeping in view the amendment made in the Code of Criminal Procedure, the petitioner is entitled to the relief prayed for by means of instant petition.
5. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant opposes this petition with vehemence with the contentions that the petitioner is named in the F.I.R., who has deprived the complainant from a huge amount. It is next argued that issuance of cheque has not been denied by the petitioner and during the course of investigation he was found guilty and as such he is not entitled to the relief prayed for by means of instant petition.
6. Arguments advanced pro and contra have been heard. I have also gone through the record available on file.
7. Admittedly the petitioner is named in the crime report with specific allegation. Keeping in view the amendment made in the Code of Criminal Procedure (Amendment) Act, 2011, dated 18th April, 2011, it has been provided that who, being accused of any offence not punishable with death, has been detained for such offence for a continuous period exceeding one year or in case of a woman exceeding six months and whose trial for such offence has not been concluded so far shall be released on bail provided that in the opinion of the Court the delay in the trial is not attributed to the accused. As stated by the learned Deputy Prosecutor General, the petitioner is behind the bars since 14.08.2011. The report requisitioned by this Court in terms of order dated 12.09.2012 from the learned Trial Court qua the latest situation of the trial has been received. According to report bearing No, 308, dated 20.09.2012, the delay in conclusion of the trial is being caused only due to non-production of the petitioner before the learned Trial Court by the jail authorities and as such the delay is not attributed to the petitioner. The offence allegedly committed by the petitioner does not attract the prohibition contained in Section 497(1), Cr.P.C. In such circumstances, without touching upon the merits of the case, this Court is persuaded to accept this petition. Resultantly, the petitioner is admitted to bail after arrest subject to his furnishing bail bonds in the sum of Rs, 2,00,000/- with two sureties each in the like amount to the satisfaction of the learned Trial Court.
Bail after arrest granted.