Sunday, 1 December 2013

Liberty of a Person is a precious right

PLJ 2013 Cr.C. (Lahore) 988 Present: Sayyed Mazahar Ali Akbar Naqvi, J. JAVAID KAMAL--Petitioner versus STATE & another--Respondents Crl. Misc. No. 10103-B of 2013, decided on 26.9.2013. Criminal Procedure Code, 1898 (V of 1898)-- ----S. 497--Pakistan Penal Code, (XLV of 1860) S. 489-F--Post arrest bail, accepted--Elapse of more than four months--Maximum sentence of three year--Continuously facing incarceration for last about 24 months--Application for summoning of Bank Officer 24 moths--Application for summoning of Bank Officer was an attempt to prolong trial of Case--Validity--Accused was a retired army personnel/retired colonel--Both parties had dispute over payment as they were having joint business--Application filed u/S. 540, Cr.P.C. filed by prosecution had to be contested by defence--Such circumstances reflect that early conclusion of trial of case was not in sight--Liberty of a person is precious right, which cannot be curtailed for indefinite period--Bail was admitted. [P. 990] A Mr. Akhtar Javaid, Advocate for Petitioner. Mian Muhammad Awais Mazhar, Deputy Prosecutor General for State. Complainant in person. Date of hearing: 26.9.2013. Order This is 3rd petition on the subject on behalf of the petitioner. The 1st one bearing Crl. Misc. No. 2954-B/2012 was dismissed as withdrawn in terms of order dated 03.04.2012, whereas 2nd petition bearing Crl. Misc. No. 2487-B/2013 was dismissed on merits by this Court in terms of order dated 17.05.2013 with direction to the learned trial Court to conclude trial of the instant case within one month. 2. Through the instant petition, the petitioner has sought for his post-arrest bail in case FIR No. 58, dated 10.05.2010, offence under Section 489-F, PPC, registered at Police Station, Sarwar Road, Lahore. 3. Facts of the case already stand mentioned in Crl. Misc. No. 2487-B/2013, whereby earlier petition of the petitioner was dismissed in terms of order dated 17.05.2013; therefore, there is no need to repeat the same here. 4. Learned counsel for the petitioner submits that the petitioner is innocent and has falsely been roped in the instant case, by the complainant against the actual facts and circumstances with ulterior motives. It is argued that though the bail of the petitioner has already been dismissed on merits by this Court, however direction issued by this Court qua conclusion of trial of the instant case within one month has not been complied with by the horned trial Court due to non co-operation of the prosecution. It is argued that the prosecution has filed application under Section 540, Cr.P.C, seeking summoning of the Bank Officer as a PW at a belated stage only to prolong the trial with mala fides. Adds that only three years punishment is provided under the statue for the offence alleged against the petitioner whereas the petitioner is behind the bars for the last more than twenty four months. It is contended that there is no chance of early conclusion of the trial of the instant case. In such circumstances, it is contended that the petitioner is entitled to the relief prayed for. 5. Learned Law Officer has opposed this petition with vehemence, however, frankly concedes that the petitioner is behind the bars for the last about two years. 6. Arguments advanced from both sides have been heard. I have also gone through the record. 7. The earlier petition of the petitioner bearing Crl. Misc. No. 2487-B/2013 was dismissed on merits by this Court in terms of order dated 17.05.2013 by observing that bulk of the prosecution evidence has been recorded, with direction to the learned trial Court in the following terms: "However, the learned trial Court is directed to expedite the trial proceedings and conclude the same within one month from the receipt of this order". Despite elapse of more than four months of the passing of the aforesaid order, the trial of the instant case could not be concluded by the learned trial Court; rather the complainant has preferred an application under Section 540, Cr.P.C. seeking summoning of the Bank Officer, who singed the dishonour slip, as a PW on 04.09.2013, i.e. at a belated stage, which certainly is an attempt at the part of the prosecution to prolong the trial of the instant case. The maximum sentence of three years is provided under the statue for the offence alleged against the petitioner, whereas he is continuously facing incarceration for the last about twenty four months. The petitioner is a retired army personnel/retired colonel. Both the parties had dispute over payment as they were having joint business. Application filed under Section 540, Cr.P.C. filed by the prosecution has to be contested by the defence. Such circumstances reflect that early conclusion of trial of the instant case is not in sight. The liberty of a person is a precious right, which cannot be curtailed for an indefinite period. 8. In sequel to what has been discussed above, the instant petition is accepted as a consequence whereof, the petitioner is admitted to bail after arrest subject to his furnishing bail bonds in the sum, of Rs.1,00,000/- with one surety in the like amount to the satisfaction of learned trial Court. (R.A.) Bail accepted

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