MUHAMMAD SHAFT Versus MUSHTAQ
The petitioner seeks bail in a case registered against him and others vide F.I.R. No.205, dated 17-6-1991 for an offence under section 302/34, P.P.C. at Police Station Gujar Khan, District Rawalpindi.
2. According to the allegations made in the F.I.R. the petitioner was armed with a .12 bore double barrel gun and initially fired at complainant's wife Mst. Sohnibi which went amiss. He fired the second shot hitting Liaquat Ali son of the complainant on the chest. He again loaded the gun and fired a 3rd shot at Allah Ditta son of the complainant causing injuries on the left side of his head. Both the injured persons died at the spot. The occurrence was witnessed by the complainant, his wife Mst. Sohnibi, Havaldar Quarban Ali and Sardar Khan Councillor.
3. The petitioner has applied for grant of bail on the ground of delay in the conclusion of the trial. The petitioner's learned counsel urged that the petitioner was behind the bars for the last more than two years and' that his trial had not yet concluded. He submitted that the petitioner was not in any manner responsible for delay in the trial. He further submitted that the mere fact that the trial had started was no ground to refuse bail. According to the learned counsel petitioner can avail of the benefit of the 3rd proviso notwithstanding its deletion through Ordinance XV of 1992 and the recent Ordinance (NoX of 1993). In support of his contentions he placed reliance on the following judgments:
(1) Fazal and others v. The State and Ghulam Murtaza Shah v. The State 1977 P Cr. L J 471, 478
(2) Abdul Rehman v. The State 1978 P Cr. L J 589,
(3) Riasat Ali v. Ghulam Muhammad and The State P L D 1968,SC 353,
(4) Muhammad Ismail v. Muhammad Rafique and another P L D 1989 SC 585 and
(5) Ahrar Muhammad and others v. The State P L D 1974 SC 224.
He further submitted that the dispute had arisen over the partition of the ancestral land and that the petitioner had acted at the spur of the moment on the asking of his father Muhammad Ajaib. Therefore, he was not guilty of committing murder and if found guilty might be awarded lesser sentence under section 304 of-the P.P.C.
4. On the other hand the learned Additional Advocate-General appearing on behalf of the State submitted that the petitioner had committed double murder and if released on bail might abscond or tamper with the prosecution evidence. He further submitted that delay per se was no ground to grant bail, more so when the trial had already commenced.
5. I have given careful consideration to the various contentions raised by learned counsel for the parties. The argument that the petitioner can take advantage of 3rd proviso to section 497 of the Cr.P.C. has no force. The petitioner was arrested on 18-6-1991 for commission of an offence which was punishable with death. The right to apply for bail on the ground of delay in the conclusion of trial could have accrued to him after the lapse of two years. However, prior to that; the 3rd and 4th provisos to section 497 of the Cr.P.C. were omitted through the Code of Criminal. Procedure (Second Amendment) Ordinance, 1992 enforced on 16-11-1992. On the expiry of the said Ordinance, the Code of Criminal Procedure (Second Amendment) Ordinance. (No.I1I of 1993) was enforced on 17-3-1993. Thereafter, the Code of Criminal Procedure (3rd Amendment) Ordinance (No.X of 1993) was enforced on 14-7-1993: Hence, the petitioner cannot fall back upon the provisions of the 3rd proviso to claim bail on the ground of two years' delay in the conclusion of trial. Of course, he can press his claim for bail on the ground of delay in the conclusion of the trial in the light of the precedents of the superior Courts relating to the period when the 3rd proviso to section 497 of the Cr.P.C. had not been brought on the Statute Book.
6. The judgments relied upon by the petitioner's learned counsel generally support his contention that delay amounting to abuse of process of Court furnishes a valid ground for grant of bail. However, the discretion to grant bail on the ground of delay has to be exercised keeping in view the peculiar facts and circumstances of each case. In the present case the petitioner appears to have acted in somewhat desperate and cruel manner. Initially, he fired at the wife of the complainant who luckily escaped unhurt. Thereafter, he fired at Liaquat Ali causing injuries on his chest. He again loaded the gun and fired at Allah Ditta causing injuries on the left side of his head. Both the persons died at the spot. The argument that the petitioner had done the biddings of his father and was not guilty of murder or was likely to be awarded lesser sentence under section 304 of the P.P.C. can appropriately be determined by the trial Court after recording evidence. The petitioner's learned counsel has relied on the case of Muhammad Ismail to contend that bail cannot be refused merely for the reason that the trial has commenced. I am afraid, the said judgment is distinguishable on facts and has no relevancy in the present case. The Hon'ble Supreme Court was pleased to hold that where right to grant of right under section 497(2) of the Cr.P.C. was made out then concession of bail could not be withheld merely for the reason that trial had commenced. In this context it was observed that bail could not be withheld on the ground of practice (of not granting bail after commencement of trial) because the latter was relatable to exercise of discretion while the former, to grant of bail. As observed above, the right .to grant of bail under the 3rd proviso had not yet accrued to the petitioner when the said proviso was omitted from the Statute Book. The petitioner is merely seeking exercise of discretion in his favour in the matter of grant. of bail on the general ground of delay in the conclusion of trial. Keeping in view the totality of facts and circumstances of the case coupled with the fact that the petitioner's trial has already commenced and statements of two formal, witnesses have been recorded, I feel, the petitioner is not entitled to exercise of discretion in his favour. Moreover, a serious apprehension has been expressed by the State that if released on bail, the petitioner might abscond or tamper with the prosecution evidence. Since the statements of the eye-witnesses have yet to be recorded, the possibility of tampering with the prosecution evidence at the behest of the petitioner who appears to be a man of desperate character, cannot be ruled out. Therefore, in my view the petitioner does not deserve the concession of bail at this stage. However, I direct the trial Court to make every effort to conclude the trial expeditiously, preferably within, a period of four months. If for any valid reason conclusion of trial is not possible within the period of four months, the trial Court should, at least, record evidence of all the eye-witnesses during the said period. Thereafter, the petitioner may apply for bail afresh in this Court. This petition is, therefore, dismissed with the above direction/observation.
N.H.Q./U-29/L Bail refused,