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Criminal Miscellaneous No. 100/B of 1986, decided on 1^st April, 1986.

‑‑‑S. 497‑‑Penal Code (XLV of 1860), S. 365‑‑bail, grant of‑‑‑‑Sessions Court cancelling bail granted to accused by Trial Court‑‑Period of detention of accused before and after cancellation of his bail coming to five months‑‑F.I.R. was lodged with delay of 13 days‑‑Plausibility of explanation of delay in lodging F.I.R., was to be seen at trial stage‑ Observation of Sessions Court that facts prima facie disclosed commission of offence under S.392, P.P.C., held, could not stand in way of grant of bail‑‑Such observation even otherwise not seeming to be weighty‑ Grounds on which bail was cancelled although not found to be questionable, yet Court felt inclined to exercise its discretion in favour of accused‑‑Bail allowed in circumstances.

Shahid Hussain Kadri for Petitioner.

Azmat Dad with Khuda Bakhsh for the State.

Raja Mahmud Akhtar for the Complainant.

Date of hearing: 1st April, 1986.

The petitioner who was arrested in a case registered against him under section 365, P.P.C. on 5‑10‑1985, was granted bail by the trial Magistrate, vide order, dated 8‑12‑1985. On a petition moved for cancellation, learned Additional Sessions Judge, Mianwali cancelled bail of the petitioner, vide order, dated 7‑1‑1986. He was arrested on the same day and is in jail since then.

2. Allegation against the petitioner is that he had gone to the hotel of the complainant and had refused to make payment after having taken tea, and when the complainant pressed the demand, he abused him. Same day, the petitioner is alleged to have taken away Muhammad Munir son of the complainant. He had detained the boy illegally and had returned him on fulfilment of his demand of ransom of Rs.600.

3. The occurrence is alleged to have taken place on 6‑9‑1985 while the F.I.R. was lodged on 18‑9‑1985.

4. Learned counsel for the petitioner contended that the petitioner has been involved falsely in this case; that the case has been registered with a delay of 12 days which has not been explained properly and that since the case does not fall within the prohibitory clause, the petitioner deserves to be released on bail.

5. Learned counsel for the State /complainant have opposed the grant of bail. It is contended that the petitioner had behaved in a most highhanded manner and had abducted an innocent child merely for the reason that his father had pressed for the payment of tea charges. Learned counsel for the complainant while referring to the order of learned Additional Sessions Judge passed in the bail petition, moved by the petitioner on 30‑10‑1985, contended that the Additional Sessions Judge had observed therein, that the facts, prima facie, disclose the commission of offence under section 392, P.P.C. and as such the contention‑ of the learned counsel for the petitioner that the case does not fall within the prohibitory clause, is not correct.

6. I have considered the contentions of learned counsel for the parties and have gone through the record and order, dated 7‑1‑1986 of learned Additional Sessions Judge whereof learned Additional Sessions Judge had cancelled the bail granted to the petitioner by the trial Magistrate.

7. Although the grounds on which the bail has been cancelled, are not questionable, but I feel inclined to exercise the discretion in favour of the petitioner for the reason that since after cancellation of bail, the petitioner is in jail for the last more than 21 months. He remained in jail prior to the grant of bail by the trial Magistrate for two months, and thus his period of detention is near about five months.

8. The contention that the F.I.R. was lodged with a delay of 13 days, has not beer, denied by counsel for the complainant or the Slate Whether the reasons for delay are plausible or not, will have to be seen by the trial Magistrate after the evidence has been recorded.

9. The reference made by learned counsel for the complainant to the observation made by the Additional Sessions Judge while dismissing bail petition filed by the petitioner on 20‑10‑1985, has been considered by me. The observations by the Additional Sessions Judge, of course, cannot stand, in the way of grant of bail, at this stage. Even otherwise the observations do not seem to be that weighty.

10. In this view of the matter, the petitioner is directed to be released on bail provided he furnishes bail bond in the sum of rupees twenty thousand with two sureties each in the like amount to the satisfaction of the Assistant Commissioner, Mianwali/trial Magistrate.

H.A.K. Bail allowed.

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