MUHAMMAD AMIN vs THE STATE and anothers

ORDER

' ALTAF IBRAHIM QURESHI, J.---Through the instant petition, the petitioner Muhammad Ameen seeks his post-arrest bail in a case arising out of F.I.R. No,215, dated 4-5-2010, registered with Police Station Noor Shah, District Sahiwal, under sections 302/324/148/149/ 337-F(v)/337-F(i), P. P. C .

2. The allegation against the petitioner is that on 4-5-2010 at 9-00 a.m., he along with his co- accused (7 nominated and 3 unknown persons), armed with firearms, in furtherance of their common object, launched a murderous assault on the complainant party and killed Noor Samand.

The role attributed to the present petitioner is that he fired with his pistol, which landed on the right hand of the deceased-Noor Samand.

3. After having heard the learned counsel for the parties and perused the record, I have noticed that earlier petitioner's application for the same relief, vide Criminal Miscellaneous No,369-B of 2011 was dismissed on merits by this Court on 21-2-2011. After about six months of dismissal of his petition, the petitioner again applied to the Court of learned Additional Sessions Judge, inter alia, on the grounds that:-

(i) the co-accused of petitioner namely Muhammad Hussain has been allowed bail by this Court vide order dated 2-8-2011 and;

(ii) the petitioner is suffering from HVC as reported by the Medical Officer of Central Jail, Sahiwal and the case of the petitioner is on better footing than that of his co-accused Muhammad Hussain.

' The said two fresh grounds did not find favour with the learned Additional Sessions Judge, who vide order dated 20-10-2011 again declined the petitioner's request for post-arrest bail. After about four months of dismissal from learned Additional. Sessions Judge, this petition has been filed before this Court.

4. Learned counsel for the petitioner while reiterating the aforesaid two grounds emphasized that more than a year has elapsed from dismissal of petitioner's bail application by this Court on merits, but there is no progress in the trial and the petitioner is languishing in Jail. In these circumstances, the petitioner has a fit case for his release on bail. The learned Deputy Prosecutor-General remained unable to controvert the submissions made by the learned counsel for the petitioner and expressed no objection to the acceptance of this application..

5. In the above scenario, I seek guidance from the case-law reported in Ali Sheharyar v. The State (2008 SCM R 1448), wherein it has been held as under:- "After hearing the learned counsel for the parties and going through the record of the case, we are of the considered view that fresh bail application can be moved at a subsequent stage on the grounds which were not available at the time of filing of earlier application and order passed on the subsequent bail application would not amount to review of the earlier order on the bail application as section 369, Cr.P.C. Does not apply to such orders."

From the above quoted principle of law, it is clear that the word judgment in section 369, Cr.P.C.

Means a final decision of case/trial and is not applicable to the interlocutory order unless it culminates into conviction or acquittal of the accused by the trial Court. Therefore, when the subsequent bail application reveals sufficient reasons for the grant of bail, such relief cannot he withheld as a punishment.

6. Admittedly, the bail granting order of petitioner's co-accused Muhammad Hussain has not been challenged which still is in the field, who as per F.I.R., inflicted fire-shot on the left buttock of deceased Noor Samand. The injury attributed to the petitioner being on non-vital part of the body depicts non-contribution of the petitioner towards death of the deceased. Reference in this respect is made to Shah Nawaz and others v. The State and another (2008 SCM R 1436). The veracity of the allegations levelled against the petitioner would be determined by the learned trial Court after recording evidence.

7. Additionally, as per reports of the Medical Superintendent, DHQ Hospital, Sahiwal, dated 5-9-2011 and 1-10-2011, the petitioner was advised the tests of PCR, HCV, RNA quantitative, Genotyping from Jinnah Hospital Lahore because the facility of these investigations is not available in Jail Hospital nor in DHQ Hospital Sahiwal. This Court is of the view that the petitioner's disease needs constant care, treatment and special diet, which ordinarily is not available in Jail and undeniably, perusal of the reports annexed with, this petition, depicts that the petitioner is a sick person, thus, his case would be covered by the 1st proviso to section 497, Cr.P.C. All the more, it is well-settled law that expeditious disposal of case/trial is the right of every accused. In the case in-hand, the occurrence took place on 4-5-2010 and the petitioner was arrested on 18-6-2010. Since then, trial of the petitioner is lingering on as the same has not been concluded so far. It is not the case of prosecution that delay in trial has been caused at the instance of the petitioner or on his behalf. In these circumstances, the petitioner cannot be kept in Jail for an indefinite period.

8. In view of the -above, this petition is allowed and the petitioner is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs,1,00,000 (Rupees one lac) with one surety in the like amount to the satisfaction of the learned trial Court.