KHAN MUHAMMAD Versus RAJA SHER ZAMAN
ORDER
The present petition for cancellation of bail of Raja Sher Zaman and Inayat Ullah respondents arises out of the following facts and circumstances.
2. On 21‑5‑1972, murder of Abdul Ghaffar son of Khan Muhammad petitioner took place in which the present two respondents and one Qamar‑uz‑Zaman were allegedly involved as the murderers. All the three accused persons moved an application before the Sessions June, Rawalpindi, for grant of bail. The learned Sessions Judge vide order dated 1‑9‑1972 rejected that application. All the three accused persons then moved this Court through Cr. M. No. 2326/B of 1972 for grant of bait. My learned brother Aslam Riaz Hussain J, by his order dated 20‑10‑1972, dismissed the said application. Sher Zaman and Inayat Ullah accused persons again moved a petition for bail before the Sessions Judge who vide order dated 5‑9‑1973 dismissed the same. Against this order they approached this Court through Cr. M, No. 3740/B of 1973 for bail. Again, my learned brother Aslam Riaz Hussain J, by his order dated 18‑12‑1973 dismissed the application for non‑prosecution as the counsel for the accused persons did not appear before him to press the application. These two accused persons again moved a fresh bail application before the Sessions Judge which was dismissed by the Additional Sessions Judge, Rawalpindi, on 21‑2‑1974. They then filed Cr. M. No. 832/B of 1974 before this Court which was dismissed by my learned brother Aslam Riaz Hussain, J. on 15‑4‑! 974 in the following words:‑
The case has been called out twice, once before the interval and second after the interval, but no one has appeared to press the application. The application is, therefore, dismissed for non‑pro secution.
These two accused persons again approached the Sessions Judge who by his order dated 19‑6‑1974 rejected their bail application. Sher Zaman and Inayat Ullah accused persons then moved Cr. M. No. 2636/B of 1974 before this Court on 27‑7‑1974 when this Court had already closed for long summer vacations. It came up for preliminary hearing before me on 29‑7‑1974 when it was contended by their counsel that since 21‑5‑1972, the day of occurrence, till then, the commitment proceedings had not been completed and that the accused persons were nit is any way responsible for that delay. The case was admitted to regular hearing and notice issued to the State. Report was also called for from the Magistrate regarding the delay. The Magistrate submitted his report on 19‑8‑1974 along with a copy of the orders sheet starting frown 19‑8‑1972 till 5‑8‑1974. The case was faxed for hearing first on 2‑9‑1974 when the State counsel got adjournment in order to contact the Investigating Officer. He again got the case adjourned on 9‑9‑1974. Ultimately, the case came up for final disposal before me on 12‑9‑1974 when I enlarged Sher Zaman and Inavat Ullah accused persons on bail provided each of them furnished a bail bond in the sum of Rs. 25,000,00 each wars two sureties each in the like amount. During the arguments the learned State counsel admitted before me that out of 25 prosecution witnesses only 19 had been examined till then. He further admitted that according to the version given by the eye‑witnesses only lalkara was attributed to Sher Zaman accused ands ineffective firing to both of them. It was further found that the deceased had only one fire‑arm injury which was attributed to Qamar‑uz‑Zaman who was not a petitioner before me at that time. In view of the part attributed to these two accused persons coupled with the delay in the completion of commit ment proceedings, I had granted bail to the those two accused persons after relying upon the following authorities:‑‑
1. Manzoor Khan v. Kamir and 4 others 1972 S C M R 207.
2. Muhammad Sadiq v. Muhammad Shafi and another 1973 S C M R 212.
3. Abrar Muhammad and others v. The State P L J 1974 S C 176.
Khan Muhammad petitioner, father of Abdul Ghaffar, has moved the present Cr. M. No. 4239/8 of 19/4 against Raja Sher Zaman and Inayat Ullah accused persons fur cancellation of their bail granted by me earlier on 12‑9‑1974. It came up for hearing for the first time on 12‑11‑1974 when the counsel for the petitioner got adjournment in order to place more material oil the record arid the case was adjourned to 20‑11‑1974. On that day, again the counsel got adjournment. It was on 2‑12‑1974 when this petition was admitted to regular hearing and notice was ordered to be issued to the respondents.
3. The learned counsel for Khan Muhammad petitioner has vehemently argued that the accused respondents earlier secured bail from this Court by suppressing and misstating the material facts. According to him the petitioners deliberately did not mention in the body of their petition that earlier their bail application was rejected by Mr. Justice Aslam Riaz Hussain. If they had mentioned this fact, then according to the normal practice that petition should have been placed before Mr. Justice Aslam Riaz a Hussain and not before me. Raja Muhammad Anwar the learned counsel for the accused‑respondents, has denied this allegation. According to him, at the end of the petition the particulars of the bail application earlier decided by the High Court were mentioned and the office had put up those files along with that case. He further contends that the high Court closed for long summer vacations on 15‑7‑1974 and during the vacations Mr. Justice Aslam Hussain was not on duty. In the month of July only two Judges were working, namely, Mr. Justice Shafi‑ur‑Rehman and myself. Chat application was filed on 27-7‑1274 and the office fixed the same before me for hearing on 29-7-1974. Admittedly, Mr. Justice Aslam Riaz Hussain did not work as Vacation Judge in 1974. According to the learned counsel, in that situation the question of avoiding Mr. Justice Aslam Riaz Hussain and instead getting the case before me would not arise, but the office in ordinary routine fixed the case before me as I was one of the two Vacation Judges working at that time.
4. Another ground urged on behalf of the petitioner is that the accused‑respondents approached this Court with mala fide intentions and not with clean hands and that they did not disclose that they alone were responsible for causing the delay in the commitment proceedings. According to the learned counsel, the accused persons either directly themselves or through the police secured adjournments and thereby caused unnecessary delay in tile commitment proceedings. In other words, according to him, even the police was helping the accused persons, as some times they were not brought from the jail by the police deliberately. As mentioned above, I had called the report from the Magistrate who along with the report also sent a copy of the orders sheet starting from 19-8-1972 till 5-8-1974. I had gone through these orders. It is an admitted fact that sometimes the accused persons were present in Court, but either the prosecution witnesses were not present or the presiding officer was absent for any reason. There were also some adjournments when the accused persons could not be brought from the jail. The case was also adjourned when one: of the accused persons was ill and admitted in the Jail Hospital. As mentioned above, and the perusal of my earlier order dated 12‑9‑1974 shows that bail was grantee not only on the ground of delay but I had also considered the merits as the learned State counsel had admitted before me that according to the version given by the eye‑witnesses only lalkara was attributed to Sher Zaman accused and ineffective firing to both the accused persons. As regards the allegation of the petitioner that earlier the bail applications of the accused‑respondents were rejected thrice by my learned brother Aslam Riaz Hussain, J., they were not entitled to get bail from me, it is an admitted fact that their first bail application was rejected by his Lordship on 20‑10‑1972 and it is also an admitted fact that by that time no evidence was recorded by the committing Magistrate. There was, therefore, Do occasion for considering the case on merits. As regards the subsequent rejection of their bail applications on 18-12-1973 and 15‑4‑1974 it is not denied that on both these occasions the bail petitioners were rejected for non‑prosecution, as none appeared on behalf of the accused persons to prosecute these applications. The result that earlier, the case of the accused‑respondents was not at all considered on merits by Mr. Justice Aslam Riaz Hussain. It was for the first time on 12‑9‑1974 when I considered the case on merits, because by that time statements of 19 P. Ws. including all the eve‑witnesses, were recorded. As the order also indicates, the learned State counsel had admitted certain facts on merits in favour of the defence. There is no allegation that after the grant of bail these accused-respondents have misused this concession either by tampering with the prosecution evidence or otherwise threatening the witnesses not to depose against them. Similarly, there is no apprehension of abscondence of these accused‑respondents during the trial. It is an admitted fact that the Magistrate has already committed the case to the Court of Session where the trial is likely to commence soon. In these circumstances, I am not inclined to cancel the bail of Sher Zaman and Inayat Ullah accused‑respondents at this late stage.
I dismiss this petition.
Petition dismissed.