RASHID AHMAD Versus THE STATE

ORDER

Briefly stated the facts of this case are that a case F.I.R. No. 121 dated 27‑5‑1993 under section, 302/148/149/337‑F(v)/337‑A(ii)/427, P.P.C. registered at Police Station City, Attock against the petitioner and some others for roiting, being armed with deadly weapons and in furtherance of their common intention committing murder of Bakhsheesh Elahi and inflicting injuries to Inayat Elahi and Rehmat Elahi and causing damage to the vehicles belonging to the complainant party on 27‑5‑1993 at about 12‑30 noon within the area of bus stand, Attock City.

2. The motive for the occurrence as stated in the F.I.R. is a dispute between the parties on a wagon stand. For the settlement of this dispute a Jirga was convened but no compromise was made out. Resultantly the present occurrence occurred. No other enmity exists between the parties.

3. After registration, of the case it was investigated by the police and found that all the accused participated in the alleged crime. Challan was prepared and sent to the Court for trial. After conclusion of the trial the learned Sessions Judge, Attock convicted the petitioner under section' 302(b), P.P.C. and sentenced him to life imprisonment, vide order dated 22‑2‑1994. The petitioner preferred appeal against the order before this Court. The said Criminal Appeal No.2/1994 is pending before this Court for adjudication. Meanwhile learned counsel for the petitioners has filed the present bail petition seeking bail for Rashid Ahmad appellant/petitioner.

4. Learned counsel for the petitioner seeks bail on the grounds that petitioner was convicted on 22‑2‑1994, against this order an appeal was preferred but it has not been decided so far, that statutory period has elapsed; that there is no likelihood to decide this appeal in near future; that it is not a case of brutal murder because the said occurrence took place just after the Jirga; that this fact has been found true by the Trial Court 'and relies upon the following judgments :

(1) 1995 SCMR 1819.

(2) 1994 SCMR 480.

(3) 1984 SCMR 1166.

(4) 1991 SCMR 1459.

(5) 1986 SCMR 1970.

(6) 1983 PCr.LJ 4

(7) 1994 PCr, LJ 916 and 2359.

5. Learned counsel for the petitioner by citing the aforesaid judgments contends that the statutory ground (period of two years) confers a right to the petitioner for grant of bail, falls under section 426(1‑A)(c), Cr.P.C. At this stage, learned counsel for the petitioner admits that in some cases which are of very serious nature of brutal, and cruel and the bail was refused by the High Court. He finally contends that every murder, is not brutal. But in the present case no doubt that deceased suffered one injury and later on succumbed to that. He submits that the petitioner's case does not tall. under the category of preplanning and acted in the manner of extreme hateful. According to the site plan the occurrence took place at the road and the complainant party cannot claim that the occurrence took place at the place which was in their possession.

6. On the other hand, the bail petition has been opposed by the learned counsel for the State on the grounds that the occurrence took place on the land which is in possession of the complainant party; that the other party was aggressor; that the accused party came to the place of occurrence with the intention of committing murder; that the accused fired 5/6 shots but incidentally the deceased has received only one shot, this shows the intention of the assailant/petitioner to commit the murder; learned counsel submits that after the expiry of two years almost every accused of the murder case is entitled to bail though it is not the intention of the legislator. He relies upon the precedent 1991 SCMR 1903.

7. 1 have heard the arguments of the learned counsel for the parties and perused the record. It is an admitted fact that more than two years have elapsed and the appeal is still pending. It is also admitted fact that there is no likelihood that the appeal will be heard in the near future. According to section 426(1‑A)(c), Cr.P.C. an Appellate Court shall, unless for reason to be recorded in writing it otherwise directs, order a convicted person to be released on bail who has been sentenced to imprisonment for life and whose appeal has not been decided within a period of two years of his conviction. The intention of the legislator is very clear. In few words it can be said that after the lapse of two years, the Appellate Court shall suspend the sentence and release the convict on bail. It is discretion of the Court, keeping in view the facts and circumstances of the case to suspend or not suspend the conviction order. Much case‑law was produced during the arguments and the ratio laid down by the Hon'ble Supreme Court of Pakistan in the matter. On perusal, most of the judgments in which bail was granted to the convict on the statutory ground and there are also some cases in which bail was denied on some grounds. Keeping in view the guideline given by the Hon'ble Supreme Court of Pakistan, I am of the view that in the cases of extraordinary nature having the significance of brutal, extreme cruelty ' rather the crime is of the nature which is not only detestable but throwing some light over the chequered character of the convict, his conduct and the motive to commit crime are the paramount considerations for the refusal order. Here undoubtedly, it can be said that every case has its own facts and in the light of those, the bail is either to be refused or accepted. No definite principle can be laid down regarding which one can say that these are principles applicable in the cases for releasing the convict on statutory period. There are some other crimes which are though crimes and the society do dislike that but in such case suspension order can safely be passed as the edifice of justice will not be damaged. For example a person murdered with one shot. ‑After death his dead body is humiliated by the accused which make it extremely serious matter than a simple matter. In such‑like case, bail may be refused.

8. Without making much more comments about the facts and the circumstances of the case, the deceased died with one shot while is attributed to the present petitioner. For no fault of the petitioner, the appeal could not be taken up for hearing and statutory period, of two years had elapsed. In these circumstances, the conviction of the petitioner is suspended and he is directed to be released on bail subject to his furnishing bail bonds in the sum of Rs .50,000 with two sureties each in the like amount to the satisfaction of Deputy Registrar of this Bench.

N.H.Q,/R‑7/L

Sentence suspended.