' ABDUL RASOOL MEMON, J.---This Criminal Acquittal Appeal is preferred against the judgment dated 12-6-2010, passed by the IInd Judicial Magistrate, Karachi Malir, whereby the respondents Nos.1 and 2 were acquitted in a Case No,275 of 2007, under sections 448/506/37 P.P.C., F.I.R. No,169 of 2003 of Police Station Sachal.
Since this appeal was filed on 24-3-2012 i,e, after 657 days of the impugned judgment, the learned counsel for the appellant was called upon to satisfy the Court on the point of limitation.
' Learned counsel for the appellant has contended that appellant has filed an application under Section 5 of Limitation Act for condonation of delay bearing M.A. No,2251/12 supported by affidavit of the appellant/complainant Abdul Wahab Khoso wherein he blames his counsel that who kept him unaware about the proceedings of the case and decision thereof and when knew about the acquittal of the accused/respondent preferred this appeal.
' The explanation furnished for condonation of delay is not satisfactory for the reasons as per contents of affidavit the appellant came to know regarding acquittal of the accused/respondents few months before filing of instant appeal. Surprisingly it is own admission of the appellant that few months prior to filing this appeal, he was in knowledge of acquittal of the respondent even then he did not challenge it within time, as such, it adversely affects the vigilance of the appellant. It is a settled law that a party has to be so conscious and fully vigilant in respect of his relief and claim and in case of failure no one can be said to be responsible for his act and negligence.. In case of failure he cannot blame anybody else, because, unawareness is not a ground of condonation of delay until and unless it is supported with some cogent reasons, which are lacking in this case.
' It is pertinent to mention here that subsection (2-A) of section 417, Cr.P.C. Was inserted by way of Act No, XIX of 1994 which for the first time provided the right of appeal against acquittal to an aggrieved person and so also the limitation of 30 days was prescribed in said subsection of section 417 Cr.P.C. In this manner the special limitation prescribed by Statute itself was not subject to the application of section 5 of the Limitation Act due to bar contained in section 29(2)(a) and (b) of the Limitation Act. In this respect I am fortified by a case of Roshan v. Muhammad Saleh and 2 others (2008 M LD 187).
' In view of the above discussion I am of the opinion that the learned counsel for the appellant has failed to satisfy this Court on the point of limitation and regarding the conduct of the appellant in respect of his negligence, carelessness and laxity, the explanation is also not plausible.
Consequently, the application under section 5 of the Limitation Act being M.A. No,2251/12 is dismissed and consequent thereof this of the impugned lease amount in the name of discretion is unlawful as I H discretion used arbitrarily is not permissible in the eye of law. {{MISS PAGES IN BOOK}} as weapon of offence, but the same has been planted against them, therefore, the question of petitioners' guilt would require further enquiry entitling them to the grant of bail.
4. Neither D.A.G. Nor State counsel is in attendance, however, learned counsel for the complainant is present, who opposed the bail petition by submitting that petitioners are specifically named in the F.I.R supported by the medical report as well as recovery of empties of .30 bore from the spot, a 30 bore pistol as weapon of offence and positive FSL result. Further argued that the offence also falls within the prohibitory clause of section 497 Cr.P.C; that the F.I.R. Was lodged promptly and there is no reason as to why the petitioners should be falsely implicated. It was lastly submitted that charge has been framed and the trial has been commenced, therefore, at this stage, the petitioners are not entitled to the concession of bail.
5. I have considered the arguments of learned counsel for the parties and have gone the record.
6. No doubt, the petitioners are charged by name in the F.I.R. But with no specific role. Admittedly, the occurrence took place at night time and no direct evidence of murder of the deceased Amjad Ali is available on record. So far as the recovery of two empties of .30 bore from the place of occurrence and a charger containing six rounds of same bore are concerned, it has been effected after sixteen days of the occurrence, particularly, when the first Investigating Officer failed to secure them at first instance on 30-4-2013 at the time of spot inspection, therefore, the questions of its concoction or otherwise is to be resolved at the time of trial after recording statements of the prosecution witnesses.
7. So far as commencing of trial is concerned, no doubt, practice of this Court remains that after commencement of trial normally bail is not granted. It is settled law that in case of further inquiry, bail is to be granted as a matter of right and not by way of any concession or grace. Life and liberty of a citizen is very precious and guaranteed by Article 4 of the Constitution of Islamic Republic of Pakistan, 1973. This issue has also been settled down by the Hon'able Supreme Court of Pakistan in the case reported in (PLD 1989 SC 585). Wisdom is also sought from the case titled "Munir v. The State (2002 M LD 712 (Lahore)" wherein it has been held that bail sometimes was refused to an accused on the consideration of commencement of a trial, but that consideration was to be based purely upon propriety. whenever a question of propriety was confronted with a question of right, the latter must prevail and commencement of a trial would pose no insurmountable hurdle in the way of bail when the accused was succeeded in making out a case of further inquiry.
8. At bail stage, deeper appreciation of evidence and circumstances appearing in the case are not permitted and only tentative assessment is to be made, however, where accused satisfies the Court that there are reasonable grounds to believe that he is not guilty of such offence, then the Court must release him on bail. Wisdom is sought from the case titled Yar Muhammad v. The State and another reported in 2004 YLR 2230. On tentative assessm ent of the case, the case of the accused/ petitioners is one of further inquiry.
' So, keeping in view the above facts and circumstances of the case, this bail applications is allowed and the petitioners be released on bail in case they furnish bail bonds in the sum of Rs,3,00,000 (three lac)with two sureties each in the like amount to the satisfaction of Illaqa Judicial Magistrate, who shall ensure that the sureties are local, reliable and men of means.
' It would be relevant to mention that the observations made while deciding instant petition shall not have effect to the mind of learned trial Court at the time of final decision of the case.