MUHAMMAD IQBAL Versus STATE

ORDER

The petitioner is involved in case F. I. R. No. 11 of 1997, dated 17-1-1997 for offence under section 324, P.P.C. registered at Police Station Kaior Pucca, District Lodhran.

2. Briefly, the prosecution case is that on 17-1-1997 at about 12 noon, Mst. Bashiran the niece of Complainant, was doing knitting work while sitting on a cot when all of a sudden, Muhammad Iqbal son of Khuda Bux armed with gun came and fired at Mst. hashiran which hit on her lower portion of waist towards left as a result of which she fell down. The motive for the alleged occurrence stated to be was that Muhammad Iqbal had instigated Mst. Bashiran to commit Zina to which she reprimanded and the complainant also made a complaint of it to the father of Muhammad lqbal and due to this grudge, the accused had injured Mst. Bashiran

3. The petitioner was arrested on 11-2-1997 and till date, he is in judicial lock-up. He moved three bail applications before the learned Additional Sessions Judge but all were rejected. The last in series is dated 24-3-1998. A perusal of this order passed by the learned Additional Sessions Judge, Lodhran shows that the learned counsel for the accused-petitioner cited the precedents of the Honourable Supreme Court of Pakistan and also from the High Court. The citations of Honourable Supreme Court were Zahid Hussain Shah v. The State PLD 1995 SC 49 and Karim Bakhsh v Zulfiqar etc. 1997 SCMR 32.

4. In the case of Zahid Hussain Shah v. The State PLJ 1995 SC 49 their Lordships of the Honourable Supreme Court observed as under:--

"The right of an accused to be enlarged on bail under the 3rd proviso to section 497(1), Cr.P.C. is a statutory right which cannot be denied under the discretionary power of the Court to grant bail. The right of an accused to get bail under the 3rd proviso of section 497(1), Cr.P.C. is not left to the discretion of the Court but is controlled by that provision. The bail under the 3rd proviso to section 497(1), Cr.P.C. can be refused to an accused by the Court only on the ground that the delay in the conclusion of the trial had occasioned on account of any act or omission of the accused or any other person setting on his behalf. The bail under the 3rd proviso to section 497(1), Cr.P.C. can also be refused by the Court if the case of the accused fell under the 4th proviso to section 497(1), Cr.P.C. In all other cases the Court must grant bail."

The principle laid down in Zahid's case was approved by their Lordships of the Honourable Supreme Court of Pakistan in the case of Abdur Rashid v. The State PLJ 1998 SC 1241 = 1998 SCMR 897.

Next is the case of Karim Bakhsh v. Zulfiqar and 4 others 1997 SCMR 34 while in the order of the learned Additional Sessions Judge it is mentioned as 32. This ruling has no nexus with the question involved in the petitioner's case. It was a case where leave was granted to consider that the accused in the complaint as well as in the F.I.R. being the same, separate trial was not needed.

5. It appears that the learned Additional Sessions Judge did not even bother to see the precedents cited by the learned counsel for the petitioner what to talk of following the same. Had he done so, he would not have referred the case of Karim Bukhsh 1997 SCMR 32 supra. It is, therefore, obvious that the learned Additional Sessions Judge is oblivious of the law laid down by the Honourable Supreme Court as while dismissing the bail application, he has observed that bulk of evidence has already been recorded, and he found no ground to recall his previous order. At the cost of repetition, it may be observed that grant of bail under 3rd proviso to section 497(1), Cr.P.C. is a statutory right and is not left to the discretion of the Court but is to be controlled by the relevant provision. Reliance can be placed on Zahid's case, (supra).

6. Article 189 of the Constitution of Islamic Republic of Pakistan, 1973 reads as under:--

"189. Decisions of Supreme Court binding on other Courts. --- Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan. "

Article 190 reads as under:--

"190 Action in aid of Supreme Court. --- All executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court. "

7. This being the position of the law, it may be noted the learned Additional Sessions Judge has not, acted in a manner he is required to act and has passed an order which shows non-adherence and non-application of law declared by the Honourable Supreme Court of Pakistan.

8. The concluding part of the order of the learned Additional Sessions Judge, dated 24-3-1998 also makes an interesting reading. It may be reproduced as under:--

"Lastly I dismissed this application, vide my order, dated 12-2-1998 and it was noted in the order that bulk of the evidence has already been recorded. Only one month and eight days after I do not find any new ground to recall my previous order. So, without going into the merits of the case I once again dismiss this application. File be consigned to the record room after due completion. "

9. Now coming to the merits of this case, the petitioner is admittedly in judicial lock-up since 11-2-1997 and more than one year has passed but the trial has not yet concluded. It could not be pointed out by learned counsel of the State that the delay has occasioned on account of any act for commission on the part of the petitioner or any person acting on his behalf. In the light of the law B declared by their Lordships of the Honourable Supreme Court in Zahid Hussain's case PLD 1995 SC 49 I am left with no option but to grant this petition, as such, the petitioner is admitted to bail in the sum of Rs.50,000 with one surety in the like amount to the satisfaction of the trial Court.

10. A copy of this order shall be sent to the learned Inspection Judge of the District Lodhran and shall also be placed before Honourable the Chief Justice, Lahore High Court, Lahore for appropriate action.

N.H.Q./M-896/L ???????????????????????????????????????????????????????????????????????????????????????????? Bail allowed.