NADEEM HUSSAIN Versus State

ORDER

Nadeem Hussain-petitioner after having been booked in the F.I.R. No.449 dated 20-8-2010 registered under sections 302, 109, 147, 148, 149, P.P.C. read with section 7/21(i) of the Anti-Terrorism Act, 1997 and Article 155(c) Police Order, 2002, at Police Station Saddar Sialkot on the written application of Zarar Butt, seeks post-arrest bail,

2. Brief facts of the case are that Ali Peter and others committed the murder of Mughees Sajjad and Muneeb Sajjad dubbing them as muggers.

3. In support of bail application, learned counsel for the petitioner has argued that initially the petitioner was not named in the F.I.R., rather he was named in the supplementary statement after five days wherein complainant has not mentioned any source through which he came to know about the name of the petitioner. Adds that the address of the petitioner given by the complainant is false and the petitioner has been made scapegoat in this case. Learned counsel further submits that the case was thoroughly investigated and the police found the petitioner innocent and his name has been placed in Column No.2 of the challan implying non-recommendation of prosecution of the petitioner. Learned counsel further adds that the material available on the record as to the petitioner prima facie makes his case as that of further inquiry.

4. Learned D.P.-G., assisted by the learned counsel for the complainant, has opposed the bail. It has been argued that the trial of the petitioner along with his co-accused is at the verge of its completion and at this stage, it would not be desirable to go into the merits of the case deeply while deciding the bail application. Adds that it would be better to issue direction to the learned trial Court to conclude the trial within a short proximity of time. While concluding the arguments, it has been submitted that two young chaps who were absolutely innocent and had not yet entered in the realities of life have been done to death like animals.

5. Hearkened and record perused.

6. Of course, one feels shock after going through the contents of the F.I.R., but at the same time Courts are hedged to decide the cases within the framework of law. Petitioner was not nominated in the F.I.R., after five days the complainant made his supplementary statement involving the petitioner, case was thoroughly investigated and the petitioner has been found not involved and his name being innocent has been placed in Column No.2 of the report prepared under section 173, Cr.P.C.

7. No doubt Courts are constrained in deciding the bail applications when the trial has commenced but this issue has been settled in an authoritative judgment of the Hon'ble Supreme Court of Pakistan reported as Muhammad Ismail v. Muhammad Rafique and another (PLD 1989 585), wherein it has been held that non-granting of bail after the commencement of trial primarily relates to practice of the Court whereas the law does not make any bar on it. It has further been held that in the bail matter right of a person is involved and by virtue of law he claims it and where practice and rights go simultaneously the right would prevail. Phraseology of section 497, Cr.P.C. is very much clear on it that bail can be granted at any stage of the case. For its better understanding, subsection (4) of the ibid is jotted down infra:--

"497. When bail may be taken in cases of non-bailable offence:

(1)

(2)

(3)

(4) If at any time after the conclusion. of the trial of a person accused of a non-bailable offence before judgment is delivered Court is of opinion that there are reason-able grounds for believing that the accused is not guilty of any such offence, it shall release the accused if he is in custody on the execution by him of a bond without sureties for his appearance to hear the judgment delivered.

(5) ."

8. For what has been stated above, instant application is allowed and the petitioner is granted bail subject to his furnishing bail bonds in the sum of Rs.100,000 with two sureties each in the like amount to the satisfaction of the learned trial Court.

N.H.Q./N-52/L Bail allowed.