GHULAM RASOOL Versus STATE

ORDER

The supra-titled appeal has been filed against an order passed by District Court of Criminal Jurisdiction Pallandri dated 29-3-1997, whereby the petitioners were denied the concession of bail in a case under section 5 IPLA read with sections 307/147, 148/149, 109/114 and 341/427, A.P.C. registered against them.

2. Precisely the facts of the prosecution case are that deceased Altaf Hussain S/o Sher Dill was travelling in his jeep on Baral Pallandri Road alongwith 4 other persons, when at a place known as Dhara Suniari, the accused -persons namely Mazhar Iqbal and Muhammad Khaliq son of Nawab Khan, Javid son of Walait Khan, Ghulam Rasool S/o Ghulab Khan, Said Hassan son of Khan Muhammad, Kaloo son of Lal Khan, Zamir Hussain son of Ghulam Rasool, Umer Khan son of Noor Muhammad, Muhammad Taj son of Baloch Khan, Muhammad Akram son of Noor Muhammad, Nasir son of Muhammad Khaliq and Jangir son of unknown, suddenly opened fire on his jeep. Due to this indiscriminate firing of the above referred persons, he alongwith his companions Abid Hussain, Amjad Hussain and Muhammad Munir died on the spot while Muhammad Taj his 5th companion was seriously injured, who later on. succumbed to his injuries. It is alleged that in past, three sons of appellant (Ghulam Rasool) were murdered. Deceased Altaf Hussain and his relatives were facing accusation in the Additional Court of Criminal Jurisdiction Pallandri. The appellant Ghulam Rasool, who was complainant in that case and deceased Altaf Hussain decided to settle that case through compromise. On the day of the present incident the compromise was settled by the parties. According to prosecution, Ghulam Rasool was not serious in the compromise. He, therefore, had engaged the services of certain dangerous and desperate criminals from Pakistan for the murder of Altaf Hussain and others. After receiving money in the open Court as 'Dieat' amount for the murder of his three sons, the present occurrence took place in furtherance to the conspiracy which appellant Ghulam Rasool had cooked alongwith other accused persons.

3. Previously, the appellants sought the concession of bail in the case on merits, but the relief was declined to them on the ground that in the light of the material, collected during the investigation by the police there were prima facie, reasonable grounds to believe that they were involved in the offence of murder.

4. This time the concession of bail was sought by the accused-appellants on the ground of statutory delay as they were behind the bars continuously for a period exceeding two years and their trial is yet to conclude. The relief was refused to them in the light of forth proviso, recently incorporated through amendment in section 497, Cr.P.C. hence the present appeal.

5. Sardar Iqbal Hussain Khan learned counsel for the appellant argued that his clients are behind the bars for a period exceeding two years and their trial has not yet concluded. According to him, the delay cannot be attributed for any act of his clients. According to him, his clients are not involved in any other case, as such, they were wrongly declined the concession of bail on the ground of statutory delay by applying principle contained in forth proviso of section 497 Cr.P.C. In support of his contention, he relied upon the following authorities.

(1) PLD 1992 Shariat Court AJ&K

(2) PLD 1991 Peshawar

(3) PLD 1987 Karachi 66

(4) PLD 1988 Karachi 78

(5) PLD 1986 Karachi 224/646

(6)PLD 1990 Supreme Court 934

6. On the other hand, Sardar Abdul Hamid Khan learned counsel for the complainant submitted that appellants are responsible for the murder of five innocent persons. One of them, in passed settled the dispute of the murder of his son's with deceased Altaf Hussain and received Ten Lac rupees from him in the open Court. But prior to that, he hired services of some criminals from Gujrat (Pakistan) and with their convenience, murdered five innocent persons. According to him, about nine persons have absconded. It cannot be ruled out that if these accused persons are released on bail, they too might abscond. He further argued that only two important prosecution witnesses out of rest of witnesses shall be examined in this case. Both these witnesses were present but due to non-availability of the record with the trial Court, their evidence was not recorded on the last date of hearing. According to the learned counsel, the record of the case was summoned by this Court in the appeal filed by the appellants for their release on bail. He supported the order under appeal passed by the trial Court, whereby bail was declined to the present appellants. He also relied upon the following authorities.

(1) 1996 SCR 238.

(2) 1988 Pakistan Criminal law Journal 703.

(3) 1996 Pakistan Criminal Law Journal 22.

(4) 1997 MLD 2016.

(5) 1994 Pakistan Criminal Law Journal 308.

(6) Pakistan Criminal Law journal 1510.

(7) PLD 1975 Lahore 530.

7. I have given careful consideration to the respective contentions by the learned counsel for the parties.

8. In this case, bail is urged on the ground of statutory delay by the appellants for the reason that they are detained continuously for a period exceeding two years, but their trial has not yet concluded. They, therefore, wants to take the benefit of 3rd proviso recently add in section 497, Cr.P.C. through amendment.

9. There is no dispute that the appellants are behind the bars for a period exceeding two years. It is also admitted fact that they have no hand in the delay of their trial. In this case, however, even prosecution cannot be blamed for the delay of the trial. No hard and fast rule is laid down in bail matters, as such, there is no need to discuss the judgments which have been relied-upon by the learned Counsel for the parties in this case for and against their respective contentions. All these cases are distinguishable on facts. The 3rd proviso has been added in section 497, Cr.P.C., to extend benefit of bail to those accused- persons whose trial has not been concluded within a period of two years and where delay amounted to abuse of process of Courts. In the present case, the conduct of the appellants cannot be ignored. Prima facie, the role attributed to them can safely labelled them to be the dangerous and desperate criminals, within the contemplation of 4th proviso of section 497, Cr.P.C. The Trial Court has, therefore, committed no error while refusing them the concession of bail. Nine accused-persons, in this case are absconders. The apprehension of the learned Counsel for the complainant, therefore, is not without substance that if appellants are released on bail, they also might abscond. The appeal is, therefore, without force as such is rejected.

10. In the light of the above discussion, it appears appropriate to direct the trial Court to expedite the trial of the appellants. The observations recorded in this order are tentative in nature. These, therefore, shall he ignored while passing the final order in the case.

H.B.T./36/Sh.C(AJ&K) Appeal rejected.