MUHAMMAD AQEEL Versus FAYAZ HUSSAIN

Shahid Mahmood complainant got recorded F.I.R. No.81 dated 1-4-1994 at 3-15 a.m. at Police Station Alpa, Multan under section 302/448/ 148/149, P.P.C. Due to the dispute of immovable property both Muhammad Iqbal and Muhammad Akhtar sons of Ghulam Qadir alongwith Muhammad Yousaf Gill are alleged to have committed the International murder of Muhammad Asghar. Muhammad Iqbal petitioner is said to have raised the Lalkara that he would teach a lesson to Muhammad Asghar. His brother Muhammad Akhtar petitioner fired with his rifle, which hit the bonnet of the car. Muhammad Iqbal fired at the chest of Muhammad Asghar -who fell down. Thereafter, both Muhammad Iqbal and Muhammad Akhtar effected the continuous firing. The petitioners were arrested more than two years before against whom the challan has been submitted. The case was sent to the Court of Session. The accused person are being tried by the learned Sessions Judge, Multan. During the proceedings, on some dates the case property was not produced. The statements of the P.Ws. were recorded and the matter was at the stage of recording the statements of the accused persons under section 342, Criminal Procedure Code. An application to summon a Court-witness under section 540, Criminal Procedure Code was filed which was dismissed. The revision petition filed against the relevant order was also dismissed. Afterwards the accused persons filed another application for recalling all the P.Ws. examined already. The application has been dismissed. A revision petition was filed during the month of February, 1997 before the Lahore High Court, Multan Bench, Multan which is still pending.

2. On the statutory ground the petitioners have filed this petition for their admission to bail.

3. I have heard the learned counsel for the petitioners as well as the learned State Counsel and gone through the record before me. It is the admitted position that a period of two years has expired with regard to the continuous detention of both the petitioners-accused, that the statements of all the P. Ws. were recorded and the matter was at the stage of the recording of the statements of the accused when the petition for recording the statement of one witness as Court-witness and the other petition for recalling all the P.Ws. were filed and that at present the matter is before the Lahore High Court, Multan Bench, Multan. The main contention of the learned counsel for the petitioners is that the continuous period of detention of both the petitioners has exceeded two years and as of right they are entitled to be admitted to bail as contemplated under clause (b) of proviso 3 to subsection (1) of section 497, Criminal Procedure Code. According to him the accused persons are not responsible for the delay in the disposal of the matter as for considerable time the case property was not produced and it was after the lapse of a period of two years that the petitions to summon the Court-witness and the other petition to recall the P.Ws. were filed. On the contrary learned counsel for the State laid the emphasis that the prosecution is not at fault about the non-disposal of the Sessions case and that the petitioners are not entitled to be admitted to bail on statutory ground. In my view in the circumstances of the matter the petitioners are not entitled to be released on bail on statutory ground. No doubt they were arrested more than two years before. However, the trial is under progress and the statements of all the P.Ws. were recorded by the learned Sessions Judge, Multan. Thereafter, the petitions were filed by the accused persons to summon one witness as a Court witness and to recall all the P.Ws. My view is that the trial is being conducted by the Sessions Judge in a perfunctory manner whose loose control seems to have created the present situation. The working of the trial Court is playing part towards the delay regarding the conclusion of the trial. The prosecution or the complainant are not at fault. The protracted trial of an accused would not grant him the legal benefit of the instant nature professed by the learned counsel for the petitioners. As the theory goes in our country, the accused is the favourite child of law. However, it can safely be expressed that keeping in view the shape of scale of justice the complainant is also not devoid of the justice of the Court. According to Chapter 24, Part B, Volume III of the Lahore High Court Rules and Orders the Sessions trials should be given seriousness, which they deserve. The trial Courts should fix these cases on specified days in a week and should not crowd their cause-list for those days. The fact of the matter is that the prosecution is not at fault regarding the final conclusion of the trial and, the aforesaid statutory benefit cannot be granted to the petitioners-accused especially when at present the matter is also pending before the Lahore High Court, Multan Bench, Multan.

4. Finding no force in this petition, I dismiss the same.

N.H.Q./M-367/L Bail refused.