KHUSHI MUHAMMAD NAZIR AHMAD ETC. vs MUHAMMAD HANIF AND 3 Other

ORDER

SHAFI-UR-REHMAN, J.-Khushi Muhammad, the petitioner is a complainant who seeks leave to appeal against the order of the Lahore High Court dated 22-1-1980 whereby Muhammad Hanif and his two brothers who stood trial under section 302/307 34 P. P. C. And are awaiting judgment were released on bail and the a request of the petitioner to recall their bail order was rejected. The other petition is by Nazir and his two associates who seek leave to appeal against the order of the Lahore High Court dated 3-12-1979 whereby pre-arrest bail in a case under section 307/324/34, P. P. C. Was refused to them.

2. The facts necessary for the disposal of these two petitions are that on their 2nd of November 1977 an occurrence took place wherein on one side one Rashid was shot dead and that Mst. Sharifan received: firearm injuries on her face. On the other side in the same occurrence one Mst. Khurshid Bibi received firearm injuries and Muhammad Hanif, Muhammad Sharif and one Mst. Fateh Bibi were also injured. Khushi Muhammad one of the petitioners before us lodged F.1. R. No. 253 at Police Station Pattoki within about two hours of the occurrence charging Haji Rehmatullah since dead and his three sons the respondents' for the murder of Rashid and injuries to Mst. Sharifan. As regards the other injured, it was the case of one Muhammad Shafi that he had been approaching the police for getting a case registered but on their failure to do so he filed a complaint and at the same time kept on pressing on the police authorities at various levels to investigate the occurrence reported to them in an impartial and fair manner. On the complaint of Muhammad Shafi, Nazir and his two associates alongwitth certain others were summoned as accused. In the meantime a supplementary challan was also put in by the police arising out of investigation of the same F. I. R.

Lodged by Khushi Muhammad wherein substantially the case as was put forward in the complaint against Nazir ant others was filed in Court. The persons accused of the offence in the report lodged by Khushi Muhammad moved time and again for their bail and at one time the learned Sessions Judge admitted to bail Shaukat and Sharif on 1-6-1978 and Hanif on 27-8-1978 but the High Court set these orders aside. Their trial concluded by recording of evidence. That case is still awaiting hearing of arguments and judgment because the trial of those proceeded on the complaint arising out of the same occurrence and the supplementary challan put in is yet to start and conclude. It was found that the respondents Nazir and his two associates were not appearing before the trial Court, and in this manner impeding the progress in both the trials. The learned Judge in the High Court considering that it was a clear abuse of the process of the Court as the accused in the F. I. R.

Case were incarcerated without any hope of disposal of their case by judgment admitted them to bail. Complainant Khushi Muhammad sought the recall of that order mainly on the ground that this was not a ground available under section 497(4), Cr. P. C. For admitting them to bail and section 498, Cr. P. C. Could not be available for importing a ground not found in section 497, Cr. P. C.The learned Judge considered that an abuse of Court's processes in the manner in which it was taking place to the great prejudice of the accused whose trial had concluded in so far as the recording of the evidence was concerned, justified their admission to bail and refused to recall the order. In the other case holding Nazir and others to be fugitive from justice, proclaimed offenders and avoiding appearance before the trial Court in spite of an assurance given in the High Court the bail before arrest was denied to them. Hence these two petitions.

3. At the outset Dr, Abdul Basit appearing for the respondents Muhammad Hanif, Sharif and Shaukat brought to our attention the language used and the contents of ground (g) para. 17 of petition filed by Khushi Muhammad. We brought his objection to the pointed attention of the learned counsel for the petitioner for his consideration and the learned counsel has by written application withdrawn it. We on our part do not consider any further proceedings in the matter necessary, at this stage of the proceedings, the legality and the propriety of it apart.

4. On merits on the factual plane and for the purposes of these petitions it is not ' denied that the same occurrence led to the registration of a case and a complaint and that a supplementary challan on the lines taken up in the complaint had been submitted against among others, Nazir, Amin and Tufail. It is also not denied that in the complaint case they have appeared and were admitted to bail but in the supplementary challan case they remained fugitive from the processes of the Court. In para. 5 of their Petition (No. 8/80) they have stated that "when the Naib-Court went out to get the guard the petitioner came out to Lahore unnoticed by the police". It has been brought to our notice that these petitioners have been in the meantime declared proclaimed offender and proceedings under sections 87 and 88, Cr. P. C. Have been initiated against them and are in progress. The fact that these three were absconders and avoiding appearance at the trial was fully established before the learned Judge in the High Court. Their presence earlier when the trial of the accused named in the F. I. R. Was taking place could not be of avail to them to justify or mitigate their absence at the crucial time when their trial was to start. With this fact being fully brought out on the record the High Court was justified in not extending to these petitioners with such antecedents the benefit of pre-arrest bail. It cannot be said that there was any illegality committed or that the discretion possessed was not exer--cised on correct principles.

5. As regards the accused Muhammad Hanif, Sharif and Shaukat, it is true that their claim to bail was examined earlier at the highest level and found without merit. It is also correct that their trial has concluded so far as the recording of evidence is concerned and their prolonged incarcera-- tion is directly and solely attributable to delay in the trial of complaint case or the supplementary challan. As demonstrated by reference to ground No. (5) in the petition of Nazir and others, the delay in the cross-case is on account of the accused, who are to face trial. Even if their case for bail did not fall in subsection (4)of section 497, Cr. P. C. Delay amounting to abuse of the process of Court has always been accepted by this Court as a good and a sufficient ground for enlargement of the accused on, bail (reference Barkhurdar v. Liaqat Ali and 2 others (PLD 1977 SC 434). On the point of abuse the learned Judge of the High Court recorded the following finding: "The accused in the murder case are thus in the lock-up without any proceedings whatever for the last four months and two weeks. (After evidence had concluded). I find it unconscionable to allow the petitioner (respondent herein) to rot in jail as the accused in the cross-case has thought worth their while to block the proceedings and keep themselves beyond the reach of the arms of law."

Such a finding being based on material on record could justifiably react and be decisive of the entitlement to bails pre-arrest in the case of the accused of the complaint or supplementary challan case and post-arrest of the accused in the main challan case. We, therefore, find no merit in either petition and dismiss both.