This is post-arrest bail petition by accused-petitioner (Dawa Jan) in F.I.R. No.02, dated 01.01.2019, under Section 392, 41 1 P.P.C, Police Station Sehala, Islamabad.
2. According to the allegations set-forth in the F.I.R, on 01.01.2019, at about 04:15am, within the area of Phase-VII, Bahria Town, Islamabad, three persons duly equipped with firearmsentered into the house of the complainant and on gun point committed robbery of two gold rings, two chains, two bangles, cash Rs. 100,000/- and mobile phone.
3. Learned counsel for the petitioner contends that the petitioner was arrested in the case on 30.05.2019 while conclusion of the trial is not in sight despite lapse of 21 months,therefore, he is entitled to the concession of bail.
Learned counsel placed reliance upon case laws reported as 1990 SCMR 1090 , PLD 1990 SC 934, PLD 1995 SC 49, 2015 P . Cr. L J 259 (Islamabad) and 2012 P .CrLJ 970 (Lahore).
4. On the other hand, learned counsel for the complainant asserted that petitioner was duly identified by the complainant in identification parade while recovery was also effected from his possession; that petitioner is involved in more than dozen cases of like nature and was also convicted in one case i.e. F.I.R No.61/2019 and sentenced to three years imprisonment; that he is an afghan national and in case of release, may abscond, therefore, not entitled to the concession of bail.
5. In-rebuttal, learned counsel for the petitioner argued that sentence of the petitioner , referred above, has since been suspended in criminal revision which is pending adjudication.
6. Learned State Counsel testified that petitioner is Afghan national; is habitual offender and in case of his release on bail, there is a chance of repetition of of fence.
7. Heard, record perused.
8. Record reveals that during investigatio n robbed gold ornaments and cash were recovered from the petitioner while he was also identified by the complainant during identification parade.
9. In-addition, he is involved in several other cases of like nature, convicted in one of the said cases and is an Afghan national, therefore, in the attending circumstances; no case for grant of post-arrest bail on the ground of delay in conclusion of trial is made out.
10. Adverting to the ground of delay in conclusion of trail, reliance is placed upon case of "Moundar and others v.
The State" (1988 SCMR 1113), wherein larger Bench of five Hon'ble Members of the Apex Court has held as under:- "The word "criminal" cannot be given a special meaning as a person already convicted of a crime for in that case, the category of previous convicts having been separately mentioned as disentitled to the privilege of release on bail on the ground of statutory delay , the word s under interpretation to the effect that the person is hardened, desperate or dangerous criminal, would be render ed completely redundant and meaningless. Therefore, opinion on this question can be based upon the materials available in the case under trial as well as any other material which may be produced by the prosecution to help the Court in formation of such opinion." [Emphasis added] It was further held that: "In subsection (1) of section 497 the legislature has already empowered the Court even before the commencement of the trial to make a tentative assessment of the evidence collected against an accused person or likely to be produced in the trial against him, in order to reach the conclusion whether there appears a reasonable ground for believing that he has been guilty of an offence punishable with death or life impris onment or imprisonment for 10 years. The provision under consideration here is a proviso to the same subsection, and, therefore, it will be reasonable to construe it in the same manner authorizing a Court to take into consideration the evidence collected by the prosecution for purposes of determining whether the accused is a criminal of the categories prescribed therein. Of course the Court can take into consideration and indeed in most of the cases it will take into consideration other materials produced by the prosecution in order to show that the case falls within the prohibitions contained in the 4th proviso."
11. Having examined the case of petitioner on the touchstone of the dictum ibid, it is observed that case of the petitioner is hit by fourth proviso to Section 497(1) Cr.P.C, as he is involved in numerous other cases of like nature with conviction in one of the said cases, offence alleged is heinous, an offence against the society which cannot be taken lightly , therefore, this ground is also not available to the petitioner
12. As the trial of the case is in progress, therefore, in view of the law laid down by the Hon'ble Apex Court in "Rehmatullah v. State" (2011 SCMR 1332 ), the courts should not grant or cancel bail when the trial is in progress and proper course for the courts in such a situation, would be to direct the trial court to conclude the trial of the case within a specific period.
13. The case law relied upon by learned counsel for the petitioner does not extend any help to the petitioner due to having distinct facts and circumstances.
14. In view of above, instant post arrest bail petition being devoid of merits is dismissed . However , the learned Trial Court is directed to conclude the trial within a period of two months after receipt of this order .
14. Needless to mention that above is only tentative assessment for the purpose of instant bail petition only and shall not af fect/influence trial of the case in any manner .