P L D 1979 Lahore 220 (PLP)

This is the second bail application by Misbah-ud-Din alias Chhabi son of Shah Din who along with his brothers Jamshed, Pervaiz and Humayun and father Shah Din alias Shahya is accused of having caused the death of Tariq son of Amir Din on 29-9-1977. The application was admitted to hearing by my order dated 20-11-1978 as the learned counsel for the petitioner contended that a statement under section 164, Cr. P. C. made by Muhammad Azim P. W. named in the F. I. R. was not mentioned in the earlier application dismissed by my order dated 25-7-1978. The second point raised related to delay and non-compliance of my order dated 25-7-1978 by which directions were issued to the trial Court to hear the case from day to-day and finalise it in the first week of September, 1978.

2. The learned counsel for the petitioner contends that Muhammad Azim P. W., the only independent eye-witness named in the F. I. R. made a statement under section 164, Cr. P. C. on 26-12-1977 in the Court of a local Magistrate stating that two persons assaulted Tariq deceased and further stated that Shah Din and his sons whom he knew were not involved in this occurrence. The learned counsel contends that the attention of this Court was not drawn to this material document which would completely exonerates the petitioner as Muhammad Azim P. W. is the only independent eye-witness of the occurrence. The failure to consider this document has materially affected this case. He prays that upon reconsideration of the facts the Court may order the release of the petitioner on bail.

3. On behalf of the complainant Mr. Munir Ahmad Dhatti Advocate denied that Muhammad Azim P. W. was the only independent eye-witness. He asserts that Muhammad Ashfaq Butt mentioned as an eye-witness in the F. I. R. was wholly unconnected and independent witness. The learned counsel for the complainant explained the circumstances under which Muhammad Azim P. W. was compelled to make the statement under section 164, Cr. P. C. He submitted that Muhammad Azim named as eyewitness in the F. I. R. was subjected to a murderous assault by Jamshed alias Shera and Pervaiz alias Billu, the two brothers of the petitioner. Billu gave him a fist blow while Shera fired at him with a pistol which hit him in his neck. Two or three other shots fired by Shera did not hit Muhammad Azim P. W. He states that F.1. R. No. 453/77 was lodged by Muhammad Azim son of Muhammad Shafi at Police Station Tibbi City, Lahore, at 11-25 p.m. on.11-11-1977.

4. The motive for the assault was that Shera wanted Muhammad Azim P. W. to turn hostile and make a statement favouring the defence in the murder case of Tariq deceased. At this Qazi Muhammad Salim, the learned counsel for the petitioner contends that this F.

1. R. is not relevant and cannot be taken into consideration by the Court. I asked the learned counsel to show how the facts which explain the circumstances under which the statement under section 164, Cr. P. C. could . be regarded irrelevant. The learned counsel sought time to cite an authority but later relied on Emperor v. Afsaruddin Naseraddi (1) where it was held that two murders and offences of causing grievous hurt committed at different times and places during same night should be tried separately and although the charge of murder may be tried together, they should not be lumped together under one head of charge.

5. The ruling has no bearing on the facts of the present case. In this case the learned counsel for the complainant refers to certain facts to bring out the circumstances under which Muhammad Azim P. W. appears to have made the statement under section 164, Cr.P. C. I am afraid I do not agree with the learned counsel for the petitioner that I will have to overlook the circumstances under which the statement mentioned above has been made. Under section 7 of the Evidence Act, '1872 facts which are the occasion, cause or effect immediate or otherwise of relevant facts, or facts in issue or which constitute the state of things under which they happened or which afford an opportunity for their occurrence or transaction are relevant. It appears that Muhammad Azim P. W. was harassed and subjected to murderous assault to compel him to resile from his stand before the police, disown. his statement under section 161, Cr. P. C. and make a statement favourig the defence. He appears to have resisted the demand but after murderous assault he seems to have been compelled to make the statement under section 164, Cr. P. C. This is not a case of misjoinder of charges and the sole question to my mind is the examination of the circumstances under which the statement under section 164, Cr. P. C. was made on (1) A I R 1939 Cal. 32 26-12-1977 by Muhammad Azim P. W. I am of the considered opinion that this Court is obliged to consider the circumstances under which Muhammad Azim P. W. made the statement under section 164, Cr. P. C. Having given the matter careful consideration, I am of the view that the statement under section 164, Cr. P. C. has been extorted from Muhammad Azim P. W. under the fear that his death would be the inevitable result he does not make a statement in favour of the defence. The first ground on which the learned counsel for the petitioner relied thus fails.

6. This brings me to the other ground, namely, the delay in the disposal of this case. By my order dated 25-7-1978 I declined to admit the petitioner to bail but directed that the trial be concluded in the first week of September, 1978. It appears that the orders of this Court were conveyed to the learned Sessions Judge, Lahore, after the 1st of August, 1978. 'The record does not show that any attempt was made to advance the date of hearing in order to conclude the trial in the first week of September. None of the parties claims to have approached the trial Court to have the date of hearing advanced. I cannot help observing that the trial Court has not taken necessary steps for compliance of the orders of this Court and but for the fact that the accused party has contributed to the delay I would have taken a serious note of this disobedience of the orders of this Court. Rather than asking for an early hearing, one of the accused appears to have presented an application for transfer of the case in early September and the file was transmitted to the Court of learned Sessions Judge who transferred the case from the Court of Mr. Salim Akhtar Malik, Additional Sessions Judge to the Court of Mr. Muhammad Zaman, Additional Sessions Judge Lahore. The file appears to have been received in the Court of Mr. Muhammad Zaman, Additional Sessions Judge on 23-9-1978 and the learned trial Judge fixed 27-9-1978 for further proceedings. On 27-9-1978 Pervaiz co-accused did not appear and his non-bailable warrants were issued and the case was fixed for 10-10-1978. The warrants could not be served and on 10-10-1978 the case had to be adjourned till 26-10-1978. Abdul Ghafoor A. S. I. was deputed to serve the non-bailable warrants on Pervaiz accused. This attempt did not bring forth any result and on 26-10-1978 the Court directed the issuance of fresh warrants and also issued notice to the sureties for 11-11-1978. The warrants could not be served and the case had to be adjourned till 4-12-1978 with the direction to the S. P. to have the warrants served for that date. In the meantime on 19-11-1978 the petitioner submitted the present bail application to this Court which was admitted for consideration of the contention of delay and the other ground disposed of above.

7. Having heard the learned counsel for the parties at length, I have come to the conclusion that the prosecution alone cannot be blamed for the delay. The disappearance of the co-accused would perhaps necessitate the proceedings under sections 86, 87, 88 and 512, Cr. P. C. but before that is done attempts have got to be made to effect the service of the warrants on Pervaiz accused. To my mind some amount of delay under the circumstances is unavoidable. Thus, while I see no reason to enlarge the petitioner on bail, I direct that necessary steps, which the prosecution wishes to take to have Pervaiz accused declared absconder, be taken forthwith without delay and after compliance of the requirements of law in this behalf the case be heard from day-to-day and finalised within a reasonable period. I refrain from fixing any period but must observe that in the event of unnecessary delay by the prosecution the petitioner shall be free to move the Court for grant of bail on ground of delay.

8. The learned counsel for the petitioner also attempted to reagitate .the question that since the present investigating agency of the C. I. A. bad found him innocent, he ought to be granted bail. In fact, he wanted to address arguments at length on the question which I had decided by my order dated 25-7-1978. I have, however, not allowed him to do so for the reason that unless it is shown that any important fact which though on record has been omitted from consideration or as a result of further inquiry,; investigation or trial any further material has been brought on record the Court would not be entitled to review its own finding of fact or law and to assume jurisdiction to release the petitioner on bail.

9. The jurisdiction under section 497, Cr. P. C. is exerciseable by the Court at any stage of inquiry, investigation or trial with reference to the facts on record at the respective stage of the trial. The Court is entitled to take into consideration fresh material and entertain fresh bail applications which may have been necessitated by fresh developments, investigation or evidence etc. and if upon examination of fresh material and/or grounds the Court comes to the conclusion that the petitioner, who has been refused bail in the past, is in view of fresh material or grounds as the case may be, entitled to the concession of bail, there is nothing to bar the jurisdiction o the Court to enlarge the accused on bail. I am equally convinced that the decision taken by the Court on a bail application is neither provisional nor inconclusive but operative and final and binds parties. Howsoever wide meaning one may give to the language on section 497, Cr. P. C., the power to revise and review decision on questions of fact or questions of law on the evidence before it does not appear to flow from the language of the section. But this only means that question once decided on a set of facts cannot be reviewed, modified and superseded by the Court by passing a fresh order reversing its previous order on the same facts. Likewise decisions on questions of law which may or may no be based on interpretation of judgments of superior Courts are not open to review by the Court merely because a second bail application has been filed and admitted for consideration of some other questions. No doubt the Court is entitled to entertain fresh applications raising new grounds, new questions and/or referring to fresh evidence which has since been brought on record or to consider a piece of evidence which though on record was not considered earlier. There is no limit to the fresh applications but this does not mean that the moment a fresh bail application is moved, the Court would reopen the matter and re-hear the case and would be entitled to set aside its earlier determination on questions of fact or law although no fresh material has been brought on record.

10. In view of the above, I am of the opinion that a fresh bail application would be considered on the facts and grounds raised by it and not considered and decided earlier. The earlier decision is amenable to reconsideration and review only upon discovery or availability of fresh evidence.

11. With the above observations, the bail application is hereby dismissed. s,. A,-H, Application dismissed.