BARKAT ALI vs The STATE and anothers

ORDER

' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---This is 2nd post-arrest bail petition filed by the petitioner before this Court. The 1st one bearing Criminal Miscellaneous No,10005-B of 2009 was dismissed in terms of order dated 25-8-2009.

2. By means of instant petition Barkat Ali petitioner has sought for his post-arrest bail in case F.I.R.

No,104 of 2009, dated 6-4-2009, offence under sections 302, 324, 337-A(i), 337-F(i), 337-F(iii), 337- F(v), 148 and 149, P.P.C., registered at Police Station Santgtra, District Okara, lodged by Abdul Razzaq son of Abdul Rahim complainant/respondent No,2.

3. Facts of the case already stand mentioned in detail in order dated 25-8-2009 passed in Criminal Miscellaneous No,10005-B of 2009, therefore, I avoid to repeat the same here.

4. At the outset learned counsel for the petitioner when questioned that what is fresh ground available to the petitioner as earlier petitioner's post-arrest bail petition was dismissed by this Court while touching upon the merits of the case, he submits that the petitioner has been behind the bars since the date of his arrest in April, 2009 and there is no plausible progress in the trial.

Learned counsel vehemently contends that the petitioner is entitled to the relief of post-arrest bail on statutory ground as only single injury is ascribed to him, which even otherwise did not prove fatal, therefore, his case is not covered within the meaning of hardened criminal as neither he is previous convict nor he repeat the fire shot. In support of his contention learned counsel for the petitioner places reliance on the dictum of law in the case of Shouki alias Shoukat and another v.

The State and another (1984 SCMR 613). It is next argued that while disposing of Criminal Miscellaneous No,8901-B of 2010 filed by co-accused Liaquat Ali etc., this Court in terms of order dated 8-10-2010 had directed the learned trial Court to conclude the trial within 100 days, however, despite of more than one year and 3 months, there is no progress in trial and even the adjournments are not attributable to the petitioner. In these circumstances, learned counsel for the petitioner prays, that detaining the petitioner for an indefinite period would be against the spirit of criminal justice, therefore, the petitioner is entitled to the relief of post-arrest bail.

5. Contrarily, learned Additional Prosecutor-General assisted by learned counsel for the complainant vehemently opposes this petition with the averments that the petitioner's earlier petition was dismissed by this Court while touching upon the merits of the case and no fresh ground has arisen. Moreover, learned counsel for the complainant urges, the petitioner being hardened criminal, he cannot be benefited by the concession of bail on statuary ground. It is next argued that even otherwise, the petitioner is nominated in the crime report of the occurrence in which as many as three innocent persons lost their lives, whereas, 24 sustained injuries at the hands of an unlawful assembly; the petitioner was one of its active members. Learned counsel for the complainant vehemently contends that the petitioner has been ascribed the role of inflicting fire arm injuries with gun .12-bore on vital part of the body of Abbas Ali, who subsequently succumbed to the injuries.

' Learned counsel for the complainant next submits that recovery of gun has also been effected from the petitioner. It is further contended that during the course of investigation the petitioner has been found guilty, therefore, as evidence is being recorded, hence, case against him involving capital sentence, he is not entitled to the concession of bail.

6. Arguments advanced from both sides have been heard. I have also gone through the record available on file.

7. There is no cavil to this proposition that petitioner's earlier post-arrest bail petition before this Court bearing Criminal Miscellaneous No, 10005-B of 2009 was dismissed in terms of order dated 25-8-2009 while touching upon the merits of the case and thereafter the petitioner approached the august Supreme Court of Pakistan seeking the same relief through filing Criminal Petition No,1235-L of 2009, which was subsequently dismissed as withdrawn.

8. As far as contention of learned counsel for the petitioner that ease of the petitioner is not covered under 4th proviso of section 497(1), Cr.P.C. Is concerned, in a landmark judgment it was held by Hon'ble Sindh High Court in the case of Muhammad Hanif v. The State (PLD 1986 Karachi 437), as under:- "S. 497(1), fourth proviso---Finding in regard to an accused person being hardened, desperate or dangerous criminal can be given by Court by reference to facts of bail application or by reference to other extraneous matters which may be brought to notice of Court."

' In the instant case as per prosecution version as many as three innocent persons lost their lives and 24 others sustained injuries at the hands of an unlawful assembly and the petitioner was one of its active member having been armed with gun .12-bore at the relevant time and his fire shot had landed on Muhammad Abbas deceased on vital part of the body.

9. It is also worth-mentioning that in the instant case not only trial has commenced rather statements of as many as eight prosecution witnesses already stand recorded. Therefore, in view of case-law in the cases of Gul Akbar v. The. State (2007 SCMR 1798) and Muhammad C. Hanif v. Shafqat Nazir and others (2007 SCMR 1857), ordinarily superior courts do not indulge in the matter of auxiliary nature qua rendering findings on the plausibility or otherwise of the prosecution version.

10. For the foregoing reasons this Court has not been persuaded to grant the relief prayed for. The instant petition being devoid of any force, is hereby dismissed..