JAFAR HUSSAIN alias JOJO Versus State

ORDER

KHURSHID ANWAR BHINDER, J .---The petitioner seeks post-arrest bail in case F.I.R. No.405 of 2007, dated 12-5-2007, registered under section 392, P.P.C. at Police Station Township, Lahore.

2. Precise allegations against the petitioner are that he on 11-5-2007 along with his accomplices had committed robbery in the shop of the complainant and had snatched Rs.60,000 along with Nokia Mobile Phone.

3. Learned counsel for the petitioner submits that there is an unexplained delay of one day in lodging of the F.I.R., therefore, possibility of deliberations cannot be ruled out. There is no eye-witness account of the occurrence. No identification parade was ever held to identify the accused persons. The petitioner was not even involved in the supplementary statement. He further submits that all the co-accused persons have already been granted bail by the trial Court, therefore, rule of consistency demands that the present petitioner should also be released on bail, as similar allegations are levelled against him. He adds that the petitioner is behind the bars for the last ten months.

4. Learned D.P.G. opposes bail application of the petitioner and submits that the petitioner has committed very heinous offence of committing robbery and he is habitual offender, who is involved in 16 such-like cases, therefore, does not deserve any leniency of concession of bail. He further submits that case of the petitioner is clear distinguishable with that of the role of the rest of the co-accused persons, as recovery of Rs.5,000 has been effected from him. Moreover, he has been held guilty in police investigation and challan of the case has already been submitted in the trial Court.

5. I have heard the learned counsel for the petitioner as well as learned D.P.G. and have also perused the record. The petitioner is neither nominated in the F.I.R. nor was implicated in the supplementary statement. It appears that police had malafidely apprehended him from somewhere else and had involved him in this case, because there is no direct evidence of identifying the present petitioner regarding commission of the offence and above all no identification parade was ever held in order to identify the accused persons. As far as argument of the learned D.P.G. regarding petitioner's case being distinguishable with that of the rest of the co-accused persons is concerned, there is nothing on record which could prove the fact that Rs.5,000, which was recovered from the petitioner is the exact same amount which was looted from the shop of the complainant. Merely recovery of amount does not necessarily implicate a person to the commission of the offence because it was not tainted money or for that matter in order to establish the fact of commission of recovery of certain amount it is all the more important to recover the same amount from the accused person, which was in fact looted, therefore, such type of recovery does not have any significance. There are two recovery witnesses and both of them are the police officials. As per the facts and circumstances of the case when prima facie it is established that it is a false and fabricated case registered against. the petitioner, then no reliance can be placed on the police witnesses, because it is a clear violation of section 103, Cr.P.C. Police could have associated independent witnesses for the money, which I am afraid has not been done in the instant case. Learned D.P.G. has also referred to the police record which shows that the present petitioner has already confessed before police regarding commission of such-like offences, which he had earlier committed, I am afraid confession before the police is of no significance and a person cannot be sent behind the bars until and unless his guilt is proved against him in a Court of law. No accused person can be called a history sheeter or a previous record holder until and unless offence is proved against him and he is convicted in that particular offence. Merely pendency of criminal cases in the Court of law does not entitle him to be called a history sheeter or a record holder.

6. Under the circumstances, petitioner's case is that of further inquiry into his guilt. I, therefore, admit the petitioner to post-arrest bail subject to his furnishing bail bonds in the sum of Rs.50,000 with two sureties each in the like amount to the satisfaction of the learned trial Court/Illaqa Magistrate.

Petition stands disposed of.

N.H.Q./J-29/L Bail allowed.