Ghulam Mustafa vs Muhammad Farooq Alias Farooqi, And Other
This petition arises from a challenge to an order passed by the Additional Sessions Judge, Sheikhupura, granting post-arrest bail to the respondent in a murder case registered under Section 302/34 of the Pakistan Penal Code 1860. The petitioner sought the cancellation of this bail, arguing that the trial court failed to consider previous orders rejecting bail and ignored the accused's conduct. The core legal question was whether the trial court exercised its discretion judicially in granting bail when the grounds for bail had already been considered and rejected by a predecessor, and where the accused had previously failed to secure bail from the High Court. The Court held that the trial court erred by granting bail without regard to the earlier rejection orders and the accused's attempts to delay the trial. The key principle laid down is that a court must not grant bail based on grounds already adjudicated upon and rejected by a predecessor, and that bail should not be granted where the accused is actively obstructing the trial process.
- Can a trial court grant bail on grounds that have already been exhaustively dealt with and rejected by a predecessor?
- Does the fact that an accused was declared innocent during investigation automatically entitle them to bail in a capital case?
- Is the conduct of an accused in delaying trial proceedings a relevant factor for the cancellation of bail?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 173, Code of Criminal Procedure 1898
ORDER M. BILAL KHAN, J.- The petitioner, namely Ghulam Mustafa, who is complainant of case F.I.R.
No. 111, dated 26,3.2004, registered at Police Station Khangah Dogran, District Sheikhupura, presently District Nankana Sahib for an offence under section 302/34, P.P.C., by filing the instant petition seeks cancellation of bail granted to Muhammad Faruq alias Farooqi son of Rehmat Ali (respondent No. 1) by the learned Additional Sessions Judge, Sheikhupura vide order dated 11.4.2005.
2. The case of the prosecution as it unfolded in the F.I.R., according to the petitioner, was that, on the fateful day, i.e. 25.3.2004, abut 12.00 noon, he was proceeding to the house of his paternal uncle Muhammad Saddique deceased and was accompanied by Sajid Ali son of Feroze Din and Bashir Ahmad son of Rehmat Ali; when about 12.00 noon they entered the Courtyard of the house from the outer door, they observed that Faruq Ahmad alias Farooqi (respondent No. 1) was throttling Muhammad Siddique deceased with his both hands, whereas Zulfiqar Ali, co- accused, had been holding both the hands of the deceased and Mst. Rehana alias Rani wife of Muhammad Siddique' was standing nearby in naked condition; on seeing them Faruq Ahmad alias Farooqi and Zulfiqar Ali claimed over the wall and fled, whereas Mst. Rehana alias Rani covered herself up; they observed that Muhammad Siddique had died on account of strangulation.
The motive according to the complainant was that Faruq Ahmad alias Farooqi (respondent No. 1) and Zulfiqar Ali had established illicit liaison with Mst. Rehana alias Rani for the last two years and they had killed Muhammad Siddique, whom they considered an obstacle in the way of their illicit connection. Resultantly, the instant F.I.R, had been recorded.
3. Respondent No. 1 had been arrested on 5.4.2004, whereafter he applied for his post-arrest bail, which was declined by the learned Additional Sessions Judge, Sheikhupura on 16.10.2004 by means of a detailed order, wherein he dealt with all the grounds taken by respondent No. 1 for the grant of post-arrest bail. Thereafter, ' respondent No. 1 had approached this Court for the said relief by means of Crl. Misc. No. 7944/B of 2004, which had, however, been dismissed as having been withdrawn on 30.11.2004. He repeated his application to this Court vide Crl. Misc. No. 9276/B of 2004, which too had been disposed of on 20.12.2004 with the observation that since his earlier bail, application had been dismissed only on 30.11.2004 and as such no fresh ground had accrued to respondent No. 1. He did not stop at that and made yet another application to this Court bearing Crl. Misc. No. 1916/B of 2005, which, however, was disposed of on 14.3.2005 with the observation that if respondent No. 1 thought that inordinate delay was taking place in the disposal of the trial and that the same was a ground for bail, he may approach the learned Trial Court first. Thereafter, he against moved the learned Additional Sessions Judge, Sheikhupura, who vide order dated 11.4.2005 proceeded to grant him bail, it is the said order, which has been assailed through this petition.
4. I have heard the learned counsel for the parties at considerable length and have also gone through the impugned order, it has been observed that the learned Additional Sessions Judge proceeded to grant the concession' for post-arrest bail to respondent No. 1 without acquainting himself with the earlier order dated 16.10.2004 passed by his predecessor, who had disallowed him bail The learned Additional Sessions Judge also lost sight of the fact that the grounds, which weighed with him for grant of bail had earlier been exhaustively dealt with by his predecessor. The consideration, which very heavily weighed with the learned Additional Sessions Judge in granting bail to respondent No. 1 i.e. That during the course of investigation, he had been declared innocent was available to the petitioner at the time when his earlier bail application had been, turned down.
The learned Additional Sessions Judge had conveniently -forgotten that it was he who himself had framed charge against respondent No. 1 under section 302/34, P.P.C, on 4,11.2004 despite the fact that his name appeared in column No. 2 of the report under section 173, Cr.P.C. Even otherwise, perusal of the interim orders placed on record by the learned counsel for the petitioner indicates that respondent No. 1 Is playing fast and loose with the process of the Court and is not allowing the trial to proceed. He is getting adjournments on, one flimsy pretext or the other after getting bail from the learned Court of Sessions. I am of the firm view that the discretion exercised by the learned Additional Sessions Judge in granting bail to respondent Nr 1 militates against the established principles for the grant o; bail in cases involving capital punishment.
5. Resultantly, this petition is allowed and the order dated 11.4.2005 whereby respondent No. 1 had beer granted bail is hereby recalled. Respondent No. 1, who i? Present in Court, shall be remitted to judicial custody forthwith.