KANIZ FATIMA Versus SHAUKAT HUSSAIN

ORDER

Muhammad Akram, petitioner, who is involved in case F.I.R. No.43/94 offences under section 302/324/109/34, P.P.C. registered at Police Station Ahmadpur Sial, District Jhang, seeks to be admitted to bail after arrest under section 497/498, Cr.P.C.

2. As per F.I.R. the allegation against the petitioner is that he conspired and abetted the commission of murder of Muhammad Sharif by Faiz Ahmad and Muhammad Zafar and no overt act has been attributed to the petitioner.

3. The learned counsel for the petitioner vehemently contended at length that the only allegation against the petitioner is that he conspired and abetted the commission of murder of deceased and no overt act has been attributed to him; further contended that the P.Ws., who overheard the alleged conspiracy being hatched by the petitioner in his Bathak while passing through the street are inimical towards him and the story is unbelievable; the challan was not submitted till the filing of the petition and lastly the petitioner was entitled to bail on statutory grounds.

4. The learned counsel for the complainant assisted by the learned counsel for State resisted the application on the ground that twice application for bail after arrest was dismissed by the Court on merit; the statutory ground is also not available as the period of two years has yet not passed and delay in disposing of the case has been caused because of the accused person and lastly the trial has already commenced as five P.Ws. have been examined; only two eye-witnesses and Investigating Officer are left to be examined..

5. I have heard the learned counsel at length and perused the record and gone through the police record and law cited at Bar with their able assistance.

6. As at the very outset, the learned counsel for the complainant raised objection that the bail application on merits is not maintainable, needs consideration being vital point. Admittedly, the petitioner moved application twice for bail after arrest before this Court, which was dismissed after hearing lengthy arguments on merits vide Criminal Miscellaneous No.4322/B of 1994 and 3909/B of 1995 on 26-10-1994 and 12-11-1995 respectively. The learned counsel for the petitioner argued at length by contending that there is no bar in filing the successive bail applications before the Court though earlier decided on merit; even in absence of fresh ground and material as provision of section 369, Cr.P.C. is not applicable to orders disposing of bail applications under section 497/498, and relied on case Saleem Akhtar v. The State PLD 1980 Lah. 127 wherein it was observed that the provision in section 369 did not apply to orders disposing of bail applications; the view adopted was based on the dictum laid down Gulzar Hussain Shah v. Ghulam Murtaza PLD 1970 SC 335 and Amir v. The State PLD 1972 SC 277 wherein it was observed that strictly speaking an order allowing or cancelling bail does not amount to a judgment within the meaning of section 369; High Court has inherent powers to revoke review etc. as- its earlier order is not governed by sections 369, 424 and 430, Cr.P.C. with a view to prevent abuse of process of Court or meet the ends of justice; second application for bail would be competent even in the absence of fresh material. While in case Saleh Muhammad v. The State 1983 SCMR 341, their Lordships of Supreme Court laid down that successive applications after rejection on merits could not be moved; "unless the repeated request was made on grounds, other than those available at the time of the first application; no fresh application or merits could not be entertained by the High Court". Similarly, the Zubair's case PLD 1986 SC 173; it was held that the second or the subsequent bail application to the same Court shall lie on fresh ground, namely a ground, which did not exist at the time when the first application was made. If a ground was available to the accused at the time when the first bail application was filed and was not taken or was not pressed, it cannot be considered as a fresh and made the basis of any subsequent ball application. The contention of the learned counsel on merits seems to be reasonable but following the latest view of the Supreme Court, which is more rational and of binding nature, I am not inclined to reconsider the bail application on merits being twice dismissed by the Court; the nail application will only be considered on fresh ground of statutory delay.

7. The fresh ground as contended by the learned counsel for the petitioner is that he was arrested on 31-3-1994 and two years have passed even yet the trial has not been concluded without any fault on his part, on the other hand learned counsel for the complainant has opposed this application on the ground that the proceedings in the case have already commenced as five P.Ws. have beer, examined; to which two eye-witnesses and Investigating Officer are left; delay has been caused because of the accused person and not because of the prosecution of the case and the case is now fixed for hearing on 2-7-1996.

8. The learned counsel for the petitioner referred to the proviso (3) to section 497, Cr.P.C. (1) and emphasized that according to the proviso there are only two restriction on the grant of bail on the ground of statutory delay; firstly that delay is occasioned by an act or omission of the accused and secondly, the petitioner/accused is a hardened, desperate or dangerous criminal; the petitioner, as contended is neither responsible for the delay occasioned nor is a dangerous criminal, as is in service of armed forces; further the emphasis on the words "whose trial for such offence has not been concluded"; are of great significance in the proviso (3) to section 497(1) and relied on case Ahmad Hassan Shah v. The State 1988 MLD 450; wherein the learned Judge observed on the above underlined words that: "Had the intention of the Legislature been to refuse bail to the accused, whose trial for such offences has commenced or is likely to be concluded in near future then the Legislature would not have used the word "concluded" and held: "bail should not be refused to a person who has earned right of bail by remaining in jail continuously for such a long time, simply because the trial has commenced or the trial is likely to be concluded in near future".

9. The learned counsel for the complainant pointed out that delay was caused because of the accused person; firstly on 16-11-1995, the accused persons prayed that they being poor persons, State Counsel be provided as cannot engage a counsel; though they engaged a private counsel later on, hence 15 days were wasted due to them; on 13-2-1996 statement of three P.Ws. were recorded whereas six P.Ws. were present but the learned defence counsel sought adjournment and case was adjourned to 8-4-1996, again a period of two months and ten days were wasted; again on 8-4-1996, though the witnesses were present yet the case was adjourned to 8-5-1996 meanwhile the petitioner moved the application for bail before the High Court, which came up for hearing on 8-5-1996 before the Court, the police record was summoned by the Court in the bail application hence the case was adjourned to 2-7-1996. The contention of the learned counsel for the complainant that the delay has been caused because of the petitioner carries weight; firstly as the fact was concealed from the Court that five witnesses had been examined rather it was pleaded; that the charge has not been framed till now which is clear cut violation of section 344, Cr.P.C.; rather effort was made to mislead the Court; secondly the application was moved intentionally to delay the proceedings that the eye-witnesses and Investigating Officer could not be examined with the intention, meanwhile the petitioner would become entitled to bail on statutory grounds.

10. In case Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585, it was held that it is well-known practice of the superior Courts of Pakistan that when a murder case is fixed for hearing, ordinarily the bail applications are not decided on merits and the matter is often left to the discretion of the trial Court. In case Amanullah and 2 others v. The State 1991 SCMR 463; trial of accused was in progress and the sole eye-witness was yet to be examined; learned Judges issued directions to the trial Court to examine the eye-witness within- one month; similarly, in case Chamni v. The State 1992 MLD 2016 (Pesh.), the trial of the accused like case in hand was virtually near conclusion, the bail was declined and the trial Court was directed to dispose of the case as soon as possible. In another case reported as Muhammad Iqbal and another v. The State 1987 PCr.LJ 1561 (Lah.) the trial was in progress and much of the prosecution evidence had already been recorded and was likely to be concluded like case in hand, it was held teat the petitioner was not entitled to bail solely on ground that a period of two years elapsed since his arrest and trial had not been concluded.

11. In the circumstances, as only two eye-witnesses and one Investigating Officer are left to be examined by the trial Court following the precedents and keeping in view the nature of the case and only the eye-witnesses are left, it would not be proper to release the petitioner on bail rather in the interest of justice; the learned trial Court is directed that the trial be concluded till 31st of July, 1996 without any further delay subject to the condition that the accused person does not cause delay in the conclusion of the trial. Disposed of accordingly.

N.H.Q./M-153/L ???????????????????????????????????????????????????????????????????????????????????????????? Bail refused.