Through this petition filed under Section 497, Cr.P.C., the petitioner namely Mulazim Hussain seeks post-arrest bail in case F.I.R. No. 726 of 2020, dated 04.11.2020, registered at Police Station Gagoo, District Vehari, in respect of offences under Sections 394 and 41 1, PPC.
2. The allegation as against the petitioner namely Mulazim Hussain, culled from the evidentiary material available before the Court, is that the petitioner along with his co-accused robbed Muhammad Jameel, the cousin of the complainant of the FIR, stole away the motorcycle of Adnan Jameel and also fired at the person of Adnan Jameel hitting him on his left foot.
3. I have heard the learned counsel for the petitioner , the learned counsel for the complainant, the learned Deputy Prosecutor General at length and perused the record with their able assistance.
4. It is discernable from the perusal of the FIR that the petitioner namely Mulazim Hussain was not named in the same as an accused and the FIR was got registered against two unknown persons. The name of the petitioner cropped up for the first time during the investigation of the case on 13.11.2020, when he was nominated as an accused by the witnesses namely Nasir Mahmood, the complainant of the FIR, Muhammad Ramzan and Ghulam Rasool, whose statements under Section 161 the Code of Criminal Procedure 1898 were recorded in this respect on the said date. A perusal of the said supplementary statements recorded of the complainant and the witnesses reveals that no source has been mentioned in the same due to which the complainant and the witnesses came into the knowledge regarding the identity of the petitioner . The complainant and the witnesses in their statements recorded on 10.11.2020, simply stated that they had come to know regarding the involvement of the petitioner in the occurrence, however , did not mention the basis of their such knowledge In absence of any source by way of which the complainant and the witnesses came to know about the involvement of the petitioner in the occurrence, the said supplementary statements cannot be considered sufficient to prove the charge against the petitioner at present. Reliance in this regard is placed on the cases of "Nouman Khan alias Roman vs. The State and others" (2020 SCMR 666), "Shahid Hussain alias Multani vs. The State and others" (2011 SCMR 1673 ), "Noor Muhammad vs. The State" (2008 SCMR 1556 ) and "Naeem Akhtar vs. The State" (1996 SCMR 511).
Moreover , during the investigation of the case, no statement under Section 161 Code of Criminal Procedure, 1898 was recorded of Adnan Jameel, the injured witness of the case, whereby the said witness named and identified the petitimier as an accused. What has raised the concern of the Court is the fact: that the injured of the case namely Adnan Jameel had till date not darned the petitioner as the one who robbed him or who fired at his person. The impact of the said omission shall also be determined by the learned trial Court, however , presently a doubt has crept up with regard to the involvement of the petitioner in the occurrence, the benefit of which doubt can be extended to the petitioner even at this stage. During the investigation of the case, the Investigating Officer did not get the identity of the petitioner namely Mulazim Hussain verified by the complainant and the eye-witnesses by holding of a test identification parade which was imperative in this case. The learned Deputy Prosecutor General has submitted that the petitioner namely Mulazim Hussain also got recovered Rs. 10,000/-,his share from the sale of the robbed motorcycle, during the investigation of the case on 20.11.2020. I have noticed that despite having previous knowledge, no effort was made by the Investigating Officer to procure attendance of independent witnesses of the locality so as to witnes s the said recovery of Rs. 10,000/- from the petitioner namely Mulazim Hussain. The investigation of this case has already been finalized, a report unde r Section 173, Cr.P.C. has been submitted and the physical custody of the petitioner is no longer required at this stage and his continued incarceration is not likely to serve any beneficial purpose. Prima facie there are reasonable grounds to believe that the case of the petitioner is one of further inquiry and probe.
5. For what has been discussed above, the case of the petitioner becomes one of further inquiry covered by sub- section (2) of Section 497, Cr.P.C. Liability of petitioner for the said offences would be determined by the learned trial Court after sifting the evidentiary worth of the material produced before the same. Till then, case of the petitioner would be within the domain of Section 497(2), Cr.P.C. calling for further inquiry into the petitioner's guilt.
The petition in hand is accepted and the petitioner is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs. 1,000,000/-(rupees one million only) with two sureties each, in the like amount, to the satisfaction of learned trial Court.
6. Needless to mention that any observations made in the above order are tentative in nature and shall not influence the trial Court. Additionally , a direction is issued to the learned trial Court to conclude the trial of the case instituted upon the private complaint lodged by the complainant expeditiously , preferably within a period of three months from the receipt of copy of this order . It is made clear that if the petitioner or any person acting on his behalf causes delay in the conclusion of the trial then the learned trial Court shall be at liberty to cancel the bail of the petitioner in accordance with law. if the petitioner absents himself from the learned trial Court, the learned trial Court would be at liberty to cancel his bail, in accordance with the law. If the petitioner misuses the concession of bail in any manner , the learned trial Court would also be at liberty to cancel his bail, in accordance with the law .