2014 PLP 928 (YLR)

SHAHID HAMEED DAR, J.

Rana Muhammad Sohail (petitioner) seeks bail-after-arrest in case F.I.R. No.708/ 2010, dated 26-6-2010, registered for offences under sections 302, 324, 148, 149, P.P.C., at Police Station Saddar Sheikhupura. The instant petition is third on the subject, the first one (Criminal Miscellaneous No.14895-B of 2011) was dismissed as withdrawn on 1-12-2011 while second application (Criminal Miscellaneous No.13798-B of 2012) was dismissed due to non-prosecution on 7-12-2012.

2. Precisely, the prosecution case as narrated by Mushtaq Ahmad (complainant) is that his brother and paternal nephew, who was a driver, drove Toyota Wagon 7794/LHO between village and Sheikhupura, as public transport; he received a telephonic information at about 8:30 a.m. on 26-6-2010 from his paternal nephew, Muhammad Ramzan (driver) that Rana Muhammad Sohail (petitioner) and his co-accused, four in number did not permit them to board passengers in their wagon and they had also snatched key of the vehicle from them; on receipt of this information, he along with his brother Muhammad Ramzan and son Liaqat Ali reached main bazaar and beseeched Sohail etc. but they would not listen to them, which led to a heated and bitter debate between them; Sohail etc. went away while extending threats of dire consequences and returned a few minutes thereafter, to the spot along with three unknown persons, being armed with different weaponry and resorted to indiscriminate firing; he, his companions and passersby had a narrow-escape; in the meanwhile, his nephew Muhammad Ramzan and son Liaqat Ali snatched rifle from Rana Muhammad Sohail (petitioner) but it was forcibly taken back by Abdul Sattar accused, who delivered it to Rana Muhammad Sohail by exhorting that all should be killed; Rana Muhammad Sohail, who was armed with Kalashnikov and his armed co-accused showered bullets by firing bursts, due to which Muhammad Ramzan, Ghulam Abbas, Sajid, Waqas and Munawar Hussain fell onto the ground, badly wounded; they were shifted to hospital for treatment of their injuries; motive behind the occurrence was that Rana Muhammad Sohail etc. used to act roguishly at the Wagon Stand.

3. Learned counsel for the petitioner submits that the instant petition has been filed by the petitioner on the fresh ground that trial of the accused has not concluded despite lapse of more than two years; besides, the complainant party has been summoned as accused in a private complaint-case filed by Ghulam Abbas (injured) vide order dated 28-1-2013, by the learned trial Court; all the injured persons are cited witnesses of private complaint-case and they have categorically stated before the learned trial Court that it was the complainant party, which had committed the occurrence; the petitioner was arrested in this case on 4-8-2010 and he has been languishing in jail ever-since; the question regarding initiation of aggression can only be resolved at the time of trial; the petitioner or any other person acting on his behalf has not occasioned delay in conclusion of the trial; for the aforesaid reasons, the petitioner is entitled to the relief prayed for.

4. On the other hand, learned Addl: Prosecutor-General Punjab, assisted by learned counsel for the complainant opposes with the contention that petitioner is the principal accused of this case, who downed as many as five persons with firearm injuries, one out of whom, Muhammad Ramzan succumbed to the injuries on 31-7-2010; the motive is directly attributed to the petitioner; it is the accused-petitioner, joined by his co-accused, who hampered proceeding of the trial on different pretexts and they occasioned delay in conclusion thereof.

5. After hearing learned counsel for the parties and perusing the record, it is observed that first bail application (Criminal Miscellaneous No.14895-B of 2011) of the petitioner was dismissed as withdrawn vide order dated 1-12-2011 followed by dismissal of his second bail-application (Criminal Miscellaneous No.13798-B of 2012) vide order dated 7-12-2012 by this court due to non prosecution. There is no cavil to the proposition that dismissal of first bail-application on a particular day either on merits or as withdrawn synchronizes with exhaustion of all the grounds available, whether pressed or not and subsequent/ second bail application would lie only on a fresh ground, having arisen after dismissal of the first/earlier one. Guidance in this regard may be had from the case-law titled "The State through Advocate-General, N.W.F.P v. Zubair and 4 others (PLD 986 SC 173), which view has been upheld by the Hon'ble Supreme Court of Pakistan in a recent judgment passed on 3-1-2013 in Criminal Petition No.896-L of 2012. The record reveals that all the injured witnesses except Ghulam Abbas joined investigation and fully corroborated the story of F.I.R. in their statements under section 161, Cr.P.C. Ghulam Abbas injured, however, stated otherwise in is statement under section 161, Cr.P.C., recorded on 2-7-2010, whereby he burdened the complainant party to have committed the occurrence and thus set-up, cross-case for offences under sections 324, 148, 149 P.P.C. against the complainant party, which was finally rejected on 8-8-2010 by the Investigating Officer as he failed to produce any evidence in support of his contention. All the injured P.Ws., appeared to have taken a somersault, as one of them Ghulam Abbas filed a private complaint against the complainant party on 19-9-2011, wherein he mentioned names of the other injured persons as witnesses of the occurrence, who rendered statements before the learned trial Court under section 202 Cr.P.C., whereby they changed the tenor of the F.I.R. case. Learned counsel for the petitioner submits that learned trial Court has summoned the respondent-accused in the complaint-case vide order dated 28-1-2013 to stand trial. In this background, learned counsel for the petitioner has submitted that it is a case of two versions. The above-said private complaint-case and order passed therein by the learned trial Court under section 204, Cr.P.C. can hardly be deemed a fresh ground, at this stage, as the injured P.Ws. resiled from their previous statements, recorded by the Investigating Officer, while rendering cursory evidence under section 202, Cr.P.C. The noted private complaint-case was filed by Ghulam Abbas, more than a year after the alleged occurrence and by that time, the injured P.Ws. Sajid, Waqas and Munawar had changed their loyalties to the other side.

6. So far as delay in conclusion of trial is concerned, it can be easily observed that prosecution witnesses, especially, the complainant and the eye-witnesses, appeared before the trial Court time and again but they could not be recorded due to stubbornness of the accused. The statements of the eye-witnesses lmran (P.W.3) and Mushtaq (P. W. 4) were recorded on 26-9-2011 but they have not been cross-examined as yet by the learned defence counsel, despite lapse of about seventeen (17) months. While declining bail to the petitioner, the learned trial Court observed in order dated 24-8-2012 that delay in disposal of trial cannot be attributed to the prosecution. The learned trial Court, on as many as 18 occasions noted/marked presence of the eye-witnesses on record but failed to examine them due to non-availability of the learned defence counsel or for some other reason, again attributable to the accused-petitioner and his co-accused. The delay caused is certainly on the part of the accused. Therefore, I am not inclined to accept this application, which is dismissed accordingly. MWA/M-92/L Bail refused.