P L D 1977 Karachi 311 (PLP)

2. The two grounds urged in support of this bail application are delay and presence of reasonable grounds for believing that the applicant is not guilty of the offence charged.

3. As to delay the contention was that no progress has been made in the case since 16‑4‑1976 in spite of an order made by my Lord the Chief Justice on 1‑3‑1976. It is well settled that delay simpliciter will not entitle an accused charged with heinous offences of murder to seek bail unless of course the delay in prosecution is so inordinate as to amount to abuse of A process of law. The facts here are that the case was received by the Addi tional Sessions Judge for trial on 16‑4‑1976, when it was fixed for 4‑5‑1976 for recording of evidence from day to day. On 4‑5‑1976 the case was adjourned to 26‑5‑1976 at the request of one of the accused, Zia Abbas, who was stated to be away from Karachi. On 26‑5‑1976 the case was adjourned to 25‑6‑1976 for compliance under section 265‑C, Cr. P. C. On 25‑6‑1976 the learned Additional Sessions Judge noted that this compliance had been completed and adjourned the case to 2‑7‑1976 for charge. 'The charge vas framed on the next date of hearing on r‑7‑1976 which was read over and explained to the accused persons. On that day, the public prosecutor filed an application under section 4~4 Cr. P. C. for withdrawal of the case against the accused Zia Abbas and Tariq Saeed which application was put off for hearing to 6‑7‑1976. In this application it was, among other things, stated that: "the only role assigned to Zia Abbas is one of instigation while no overt act has been alleged against Tariq Sayeed. that these two accused Zia Abbas and Tariq Sayeed are not known to have any connection with either of the two factions of Pathans and as such it is not believable that they could have participated in the alleged incident. that the police during investigation had examined a number of respectable witnesses who have deposed to the alibi of both Zia Abbas and Tariq Sayeed, proving beyond reasonable doubt that both of then were nowhere present in or around the vicinity of the scene of crime at the time of the alleged incident; the police had also examined one Idris, an eye‑witness who has categorically stated that Zia Abbas and Tariq Sayeed were not present with the other accused at the time of incident. The evidence collected by the police thus indicates that these two accused have been falsely implicated." This application was heard on 9‑7‑1976 and reserved for orders. The order dismissing the application was announced on 27‑7‑15176 and the case to come up on 5‑8‑1976 for evidence. The learned Additional Sessions Judge in his order dated 27‑7‑1976 observed that‑‑ "no evidence whatsoever has been recorded before this Court and therefore question as regards insufficiency or otherwise would not arise and it would be manifestly improper to consent to the with drawal of the case." No progress could be made in the case on 5‑8‑1976 by reason, of a stay order granted by this Court in Criminal Revision Application No. 99 of 1976 against the said order dated 27‑7‑1976. It is, therefore. clear that there has been neither inordinate delay nor for that matter any delay which may be attributed to the prosecution so as to constitute a ground for grant of bail.

4. Coming to the other contention of the learned counsel that there was no reasonable ground for believing that the applicant was guilty of the offence with which he is charged, the learned counsel exclusively relied upon the application under section 494, Cr. P. C. made by the public prosecutor, which was dismissed by the Additional Sessions Judge but granted by my Lord the Chief Justice in Criminal Revision Application No. 910 of 1976 in which the observations are that‑ "the prosecution evidence against both the applicants (Zia Abbas and Tariq Sayeed) cannot bear conviction on the well settled principles of law . .... the evidence collected by the police indicates that these two applicants had been falsely implicated , . . . there was no scope for the prosecution to achieve the conviction of the said two applicants."

5. Mr. G. M. Shah, the learned counsel for the applicant referred to the First Information Report which begins with the allegation that the applicant Habibur Rehman bad arrived in a jeep bearing No. KAA 726 alongwith the remaining accused and so also said Zia Abbas and Tariq Sayeed and Zia Abbas asked his companions who were with him to take the advantage of the occasion and finish the enemy whereupon applicant Habibur Rehman fired which hit Noor Hassan on his eye resulting in big instantaneous death and went on to argue that this report must be wholly disbelieved in so far as it alleges the presence of Zia Abbas and Tariq Sayeed at the vardat, in view of the withdrawal application made by the prosecution under section 494, Cr. P. C. which has been allowed by my Lord the Chief Justice with observations hereinabove reproduced. The argument was that this Court having found that Zia Abbas and Tariq Sayeed were falsely implicated resulting in their acquittal grave suspicion is cast on the entire version given in the F. I. R., creating reasonable doubts that Habibur Rehman had fired at Noor Hassan resulting in his instantaneous death. In my humble view the observations referred to above must be understood in their proper context, namely, an application under section 494, Cr. P. C. As far as I have been able to understand there is no judicial D finding in the sense of a finding arrived at after all the available evidence is recorded, to warrant the conclusion that Zia Abbas and Tariq Sayeed were falsely implicated. What has happened is that the prosecution filed an application under section 494, Cr. P. C. for withdrawal of case against Zia Abbas and Tariq Sayeed for want of reliable evidence against them. The decision in Criminal Revision Application No. 99 of 1976 will neither pre‑empt the witnesses including the first informant to give their version of the incident nor preclude the trial Court from recording evidence which may show the presence of Zia Abbas and Tariq Sayeed at the vardat or the part allegedly played by them in the incident. The consequence of the grant of application under section 494, Cr. P. C. is that Zit Abbas and Tariq Sayeed stand acquitted and this acquittal will necessarily prevail so long as judgment in Cr. Revision No. 99 of 1976 stands notwithstanding discovery of proof of the real role, if any, played by Zia Abbas and Tariq Sayeed. I cannot, therefore, give any less credence to the specific allegation made against applicant Habibur Rebman that he had shot at Noor Hassan resulting in the latter's death just because the first informant and other eye‑witnesses also allege that it was at the instigation of Zia Abbas and Tariq Sayeed that the accused including Habibur Rahman had fired at Abdul Hussain, Noor Hassan and Fazal Qayyum. It may be noticed here that the prosecution is quite willing to accept the version of the complainant as well as several other eyewitnesses in so far as it relates to offences alleged against the remaining accused notwithstanding their common allegation of instigation by Zia Abbas and Tariq Sayeed. It is also possible that the conclusion might as well be that though Zia Abbas and Tariq Sayeed were falsely implicated as it is not unknown in our part of the country to rope in innocent with the guilty one's the part ascribed to Habibur Rehman that he fired a bullet which hit Noor Hassan at his eye may be independently established. Needless to say that these are all conjectures for it will be for the trial Court to come to its own finding on the basis of evidence led. Suffice to say, however, that part ascribed to Habibur Rehman in the g promptly lodged F. I. R. and by other eye‑witnesses whose statements: were recorded immediately after the incident is precise, namely, that he fired at Noor Hassan which hit him on his eye resulting in his instantaneous death and the further allegation against Habibur Rehman is that he had an old enmity with the complainant party which allegations would prima facie exclude any reasonable doubt that he is not guilty of the offence with which he is charged. I am, therefore, of the view that Habibur Rehman is not entitled to bail and his application is accordingly dismissed. S .A. H. Application dismissed.