KHALID IQBAL Versus THE STATE

ORDER

The petitioners have applied for grant of bail in a case registered vide F.I.R. No.40 dated 9‑.2‑1993 for an offence under section 302/34, P.P.C. at P.S. Civil Lines, GuJranwala. in the F.I.R. the assailants were said to be two unknown persons and the, petitioners were mentioned as eye‑witnesses. However, shortly after recording of the F.I.R., the. complainant made a supplementary statement and implicated the present petitioners as real culprits. The petitioners were said to be armed with sharp‑edged weapons with which they allegedly inflicted as many as 14 injuries on Mst. Ghazala Naveed, wife of the complainant who died at the spot.

2. The petitioners' learned counsel urged that the F.I.R. was registered against two unknown accused and the petitioners were cited as P.Ws. but subsequently implicated in the case on the basis of supplementary statement of the complainant which was inadmissible in evidence. In this connection he placed reliance on the following judgments: -

(i) Ghulam Qadir v. Crown (PLD 1950 Baghdad‑ul‑Jadid 51).

(ii) Ramzan v. The State (PLD 1967 Lahore 588).

(iii) Mst. Nasim Akhtar v. The State (PLD 1968 Lahore 841).

(iv) Abdul Sattar v. The State (1974 PCr.LJ 208).

(V) Ashiq Mir and 4 others v. The State (1987 PCr.LJ 2101).

(vi) Sajjad Ali v. The State (1987 MLD 825).

He further urged that the judicial confession of Aleem Ahmad petitioner No.2 was the product of police presence and otherwise lost its efficacy after it was retracted. Moreover, the same could not be used against Khalid Javed petitioner No.l. In this connection, he placed reliance on the judgment reported as "Munawwar Hussain, and 2 others v. The State" (1971 PCr.LJ 14). He pointed out that the occurrence had taken place on 9‑2‑1993 and the petitioners were arrested by the police on 12‑2‑1993 and kept in illegal detention. It was assailed through a Habeas Corpus petition (Criminal Miscellaneous No.118-H/93) on 16-2-1993 which was disposed of on 23-2-1993 with certain observations. The police record showed the petitioners' arrest having been made on 21-2-1993. He further submitted that the petitioner- were behind the bars for the last about two years and ten months and were entitled to bail on that ground alone. In this connection he relied on the following judgments:-

(i) Ahrar Muhammad and others v. The State (PLD 1974 SC 224).

(ii) Gul Muhammad and 3 others v. The State (PLD 1983 Lahore 681).

(iii) Nazir Hussain v. Ziaul Haq and others (1983 SCMR 72).

(iv) Abdul Waheed Khan v. The State (1989 MLD 4049).

3. On the other hand, the learned State Counsel opposed bail on the ground that the case was ripe for final disposal and that delay was partly attributable to the accused. The. complainant also opposed grant of bail and urged that during the trial strong evidence was brought on the record to prove that the murder was committed by the petitioners; that due to the shock of murder of his wife he was confused and made some errors while lodging the F.I.R. but immediately corrected the mistakes in his supplementary statement: that notwithstanding the apparent conflict in the F.I.R. and the supplementary statement the police had independently investigated the case and came to the conclusion that the petitioners had committed the murder; that the eye-witness account, the judicial confession made by Aleem Ahmad petitioner No.2 and recoveries of the petitioners' instruments from the spot and their blood-stained clothes sufficiently proved the case against them; that the accused/petitioners admitted that the blood-stained clothes belonged to them but gave a ridiculous explanation that their clothes were besmeared with blood as they had picked up the dead body from the spot, put it in a cot and then carried it up to the ambulance. He explained that before preparation of the inquest report the supplementary statement had been recorded in which the petitioners were named as real culprits. Had they been present at the spot, they would have been arrested by the police. In fact, they had disappeared after commission of the offence and were arrested on 21-2-1993. As regards delay in conclusion of the trial he explained that delay of about 6/7 months had taken place because the case was originally sent to the Special Court for trial. The Ordinance creating the Special Courts lapsed by the end of July 1994 and thereafter the case was sent to the Sessions Court and was fixed for hearing before it for the first time on 6-10-1994 when charge was framed against the accused. He pointed out that delay of about 3-1/2 months had occasioned due to adjournments obtained by the accused or their counsel on 29-1-1995, 9-2-1995 and 20-8-1995. He next submitted that the conduct of the accused itself revealed that they were desperate and dangerous criminals. Moreover; they have been harassing and threatening the complainant. He pointed out that Pervez Saleem real brother of Khalid Javed petitioner No.l got a false report (F.I.R. No.298, dated 12-10-1993) made against him (the complainant) and others. After thorough investigation, it was found to be false. Subsequently, two other reports were got lodged against him by the near relatives of the petitioners. He solemnly stated at the Bar that Khalid Javed petitioner had threatened him. He expressed grave apprehension that if the petitioners were allowed bail they would either abscond or physically harm. him. In this connection, he placed his own affidavit on the record. Lastly, he urged that the trial was likely to conclude in the near future and bail should not be allowed at this stage. In support of his contentions, he relied on the following judgments:--

(i) Muhammad Sadiq and others v. The State (1980 SCMR 203).

(ii) Muhammad Hanif v. The State (PLD 1986 Karachi 437).

(iii) Muhammad Khan v. The State (1987 PCr.LJ965).

(iv) Muhammad Ismail v. Muhammad Rafique and another (PLD 1989 SC 585).

(v) Allah Ditta and others v. The State (1990 SCMR 307).

(vi)Muhammad Hafiz v. The State (1992 PCr.IJ 2614).

(vii) Gulzar Ahmad and others v. The State (1995 PCr.L11494).

4. After hearing the learned counsel for the parties and the complainant in person at length, I feel that it would not be appropriate to examine the merits of the case at this stage as the trial was likely to conclude soon. True, in the F.I.R. Exh.PO, the petitioners were mentioned as P.Ws. and were subsequently named as the real assailants in the complainant's supplementary statement Exh.DB but the complainant had offered some explanation while appearing as P.W.15 at the trial for the said conflict which, may or may not, be convincing. I refrain from making any observation on this vitally important aspect of the case lest it might prejudice either party at the trial. For the same reason, the allied question of admissibility or inadmissibility of the supplementary statement of the 'complainant as well as other contentions regarding the worth and value of the judicial confession made by Aleem Ahmad petitioner No.2, the eye-witness account anti the recovery evidence are left to be decided by the trial Court.

5. As regards delay in conclusion of the trial, it may be mentioned at the outset that initially the challan of the case was submitted before the Special Court where the trial had commenced on 10-4-1994. The Court recorded evidence of some prosecution witnesses on 4-7-1994 and 6-7-1994. However, the Special Courts came to an end as the Ordinance creating the said Courts lapsed by the end of July, 1994. Thereafter, the case was sent to the Sessions Court where the petitioner's trial commenced on 6-10-1994. After commencement of the trial, the petitioners or their learned counsel obtained three adjournments when P.Ws. were present. But for the said adjournments, considerable progress would have been made at the trial. The mere fact that the period of delay as a result of the adjournments obtained by the defence comes to about 3‑1/2 months, per se, is not sufficient to entitle the petitioners to grant of bail. What is important to see is that due to the adjournments obtained by the defence in the midst of the trial, finalization of the trial was delayed. In the case of "Akhtar Abbas v. The State (PID 1982 SC 424), the Hon'ble Supreme Court had declined to grant bail to an accused who had been behind the bars for more than 3 years for the reason that the accused was partly responsible for delay in the conclusion of the trial. it was observed:‑‑

"In such a case it does not appear to be the intention of the law to calculate the amount of delay caused by the defence. All that is necessary is, to see whether the finalization of the trial has in any manner, been delayed by an act or omission on the part of the accused. In the present case, the delay is partly attributable to the accused,."

Moreover, the entire prosecution evidence and statements of the accused/petitioners under section 342 of Cr.P.C. have been recorded. The accused have declined to make any statement on oath in their defence under section 340 ' (ii) of the Cr.P.C. Now the trial is likely to conclude in the near future. The complainant has placed on the record his own affidavit in which he has expressed grave apprehension that if released on bail, the petitioners would abscond and cross the border. He has also stated therein that on 20‑8‑1995 when he was standing in the Sessions Court alongwith his relatives, Khalid Javed petitioner while in police custody threatened them with the following words:

Even during the trial about three reports were made against the complainant by the near relatives of the petitioners regarding commission of different offences. As a result of the report made by Pervez Saleem, brother of Khalid Javed on 12‑10‑1993, a criminal case was registered against the complainant vide F.I.R. No.298/93. After thorough investigation the report was found to be false and the case was recommended to be cancelled. In this background, the possibility that the complainant party shall be harassed by the petitioners after being released on bail cannot be ruled out. The material on the record, prima facie, shows that the petitioners had acted like desperate and dangerous criminals who, after having failed to ravish an innocent lady, mercilessly inflicted as many as 14 injuries on different parts of her body. Therefore, I am not persuaded to allow bail to the petitioners at this stage even on the ground of delay in conclusion of the trial.

6. The judgments cited by the petitioners' learned counsel for claiming bail on the ground of delay proceed on their peculiar facts. In Nazir Hussain's case, it was ruled by the Hon'ble Supreme Court that grant of bail on expiry of certain specified period and under certain conditions was a matter of right of the accused and not only discretion. One of the conditions is whether the delay is attributable to the accused. As held above, in the present case, the petitioners or their counsel had obtained three adjournments in the midst of the trial and thus partly contributed to delay in finalization of the trial. In Abdul Waheed Khan's case, the accused had remained in custody for more than 2 years and had obtained only 2 adjournments during the trial. The prosecution had examined only 6 witnesses and 10 more P.Ws. had yet to be examined. In the circumstances, the accused was allowed bail. In the case of Gul Muhammad and 3 others, the period of adjournments sought on behalf of the accused was excluded and bail allowed as remaining period of delay was still more than two years. This approach of excluding the period of adjournments obtained by the accused and granting bail keeping in view the remaining period of delay was not approved by the Hon'ble Supreme Court in the case of Akhtar Abbas referred to above. In the case of Ahrar Muhammad and others bail was allowed on the general principle of inordinate delay amounting to abuse of the process of law. In the said case, the accused had suffered detention in jail for a period of 5 years. The other judgments cited by the petitioners' learned counsel regarding inadmissibility of supplementary statement and the confessional statement, need no discussion as the said question had been left to be decided by the trial Court.

7. For the foregoing discussion, I do not find any merit in this petition which is dismissed. However, in the interest of justice, the trial Court is directed to proceed with the trial expeditiously and finalize the same within a period of 2 months.

N.H.Q./K‑217/L

Bail refused.