GHULAM AKBAR SHAH Versus STATE

ORDER

ASLAM RIAZ HUSSAIN, J .‑‑Ghulam Akbar Shah petitioner was accused alongwith two others of the murder of Ghulam Abbas and causing injuries to Mst.Amina, wife of the deceased.

2. The occurrence took place on 24‑1‑1986 Ghulam Akbar Shah petitioner was arrested five days later, on 30‑1‑1986, but one of the co‑accused namely Safdar Hussain absconded and has not been arrested. Challan was put up and the trial commenced on 9‑9‑1987, but it could not be concluded due to abscondence of Safdar Hussain co‑accused who is the real brother of the petitioner and is serving in the Army .

3. Since the trials could not be concluded the petitioner applied for grant of bail, relying on the 3rd proviso to Section 497(1), Cr.P.C. but the same was rejected by the Additional Sessions Judge, D.G.Khan on 3‑3‑1988. He then applied for bail before the High Court which was dismissed by the impugned order dated 19‑3‑1988.

It observed as follows:‑

"It is true that within a period of two years the trial has not concluded but for that prosecution is not to be blamed. The case has been coming up for trial since 9‑9‑1987 but could not proceed because of the absence of Safdar Hussain co accused who is the real brother of the petitioner. The reason for not furnishing the bail bond by the co‑accused obviously is to delay the trial so as to equip the petitioner with the plea that trial has not concluded within the period contemplated by law. Such a device adopted to abuse the law must be frustrated. I am, therefore, not inclined to allow the concession of bail to the petitioner at this state."

The petitioner then filed the present petition for leave to appeal before this Court.

4. During the arguments learned counsel for the petitioner brought to our notice a letter, dated 26‑3‑1988, from the Officiating Commanding Officer of Safdar Hussain co‑accused to show that the latter was not absconding but was in fact, not being, permitted by the higher officials to attend the Court as they regarded him to be innocent.

When we asked the learned counsel as to why the High Court did not take notice of it the learned counsel informed us that this letter was issued a week after the impugned order was passed by the High Court and, as such, he had not pressed it into service before the High Court. He, however, wishes to withdraw the petition to approach the High Court again, on this fresh ground. He is permitted to do so.

With the above observation the petition stands disposed of.

M.I./G‑80/S Order accordingly.