P L D 1999 Lahore 516 (PLP)

Laws Cited

Representation

• Muhammad Afzal Wahla for Petitioner.
• Nazir Ahmad Ghazi for Respondents Nos. l and 2.
• 2. The petitioner's learned counsel strenuously urged that bail orders in favour of respondents Nos. 1 and 2 are arbitrary, fanciful and contrary to the record; that the accused persons had obtained at least seven adjournments in the midst of the trial when the P.Ws. were present and thus delayed conclusion of the trial: that serious prejudice has been caused to the prosecution because during the intervening time two eye-witnesses were won over and have been given up by the prosecution; that had the accused/respondents not delayed trial by obtaining a number of adjournments then evidence of the three eye-witnesses would have been recorded on 15-10-1997, 25-7-1998, 27-8-1998 or 5-10-1998; that the Court below wrongly observed that the accused were responsible for delay of about one month only; that even otherwise the method of mathematical calculation and exclusion of time regarding adjournments obtained by the accused was disapproved by the Hon'ble Supreme Court of Pakistan in the case of Abdur Rashid v. The State 1998 SCMR 897. He pointed out that Tanq Mehmood, respondent No.2 was defended by Ch. Zulfiqar, Advocate and Abdul Shakoor respondent No.l and Rafiq co-accused by Mrs. Sakina Chaudhry, Advocate; that respondent No.l had also engaged Ch. Riaz, Ch. Tanvir-urRehman Randhawa and Changaiz Ahmad Khan Kakar, Advocates. In this connection he has placed on record Wakalat Namas executed by Abdul Shakoor in favour of the above-named Advocates.
• 3. On the other hand, learned counsel for respondents Nos. l and 2 raised a preliminary objection that the petition for cancellation of bail ought to have been moved before the Court below which had granted bail. In this connection? he relied on the following judgments: -
• 5. The preliminary objection raised by learned counsel for respondents Nos. l and 2 has not impressed me. There is no hard and fast rule for moving the same Court for cancellation of bail under section 497(5) of the Cr.P.C. which had originally granted bail. In case cancellation is sought on the ground of misuse of liberty by suborning the prosecution evidence or committing other offences then the general practice is that the same Court be moved first for cancellation of bail which had originally granted bail. This is only a rule of practice which may be deviated from keeping in view the facts and circumstances of a case. In the case of Zia-ul-Hassan v. The State PLD 1984 SC 192 the contention that the Court granting bail ought to be moved first was repelled. The relevant part from the judgment reads as under:-
• In the judgments in the cases of Sajid Iqbal v. Mukhtar Ahmad and 2 others 1998 PCr.LJ 299 and Muhammad Usman alias Chan Mahi v. The State 1999 MLD 671 the petition for cancellation of bail was decided/dismissed on merits by the higher Court without any direction to move the lower Court for cancellation of bail. Again in the case of Mst. Barkat Bibi v. Gulzar and another1979 SCMR 65 the Hon'ble Supreme Court had ruled that there was no bar for approaching the higher Court for cancellation of bail under section 497(5) of the Cr.P.C. Therefore, the preliminary objection raised by learned counsel for respondents Nos. l and 2 is repelled. It may be observed that this Court enjoys ample powers even under section 439 of the Cr.P.C. to revise a bail order 6 passed by a lower Court and set it aside in appropriate cases. This view finds support from the judgment in the cases of Nazir v. Amir Din and another 1971 SCMR 637 and Ijaz Ahmad v. The State 1974 SCMR 166. There is no cavil ,, with the preposition that strong and exceptional grounds have to be made out to justify cancellation of bail as held in the cases of Syed Amanullah Shah, Razi l Khan and Mazhar Mehmood relied upon by learned counsel for respondents Nos.l and 2. In the present case, such grounds are clearly made out. The bail orders in favour of respondents Nos. l and 2 on the one hand are contrary to the facts on the record and on the other hand opposed to the dictum laid down by the Hon'ble Supreme Court in the case of Abdur Rashid (supra). The respondents were arrested on 28-2-1997 and their trial commenced before the learned Additional Sessions Judge with the framing of charge on 22-9-1997. The right to seek bail on the statutory delay would have normally accrued to respondents Nos. l and 2 by 28-2-1999. The record shows that respondents Nos. 1 and 2 were responsible for obtaining adjournments in the midst of the trial when one or more P.Ws. were present in the Court. Had they not obtained adjournments on 2-10-1997, 15-10-1997, 20-1-1998, 25-7-1998, 27-8-1998, 5-10-1998 and 21-10-1998, their trial would have concluded before 28-2-1999. On 2-10-1997 Mrs. Sakina Chowdhry, Advocate (one of the learned counsel for respondent No. l who was also counsel for Muhammad Rafiq, accused) had obtained adjournment when one P.W. i.e. Aurangzeb, draftsman was present. On 15-10-1997 three eye-witnesses namely Allah Rakha, Farzand Ali and Qasim Ali were present. The interim order shows that on the said date Muhammad Rafiq accused sought adjournment as his counsel was away to Lahore. As mentioned above, Muhammad Rafiq was being defended by Mrs. Sakina Chaudhry who was also counsel for respondent No. 1. Due to her absence the evidence of the eye-witnesses could not be recorded. On 20-1-1998 learned counsel for respondent No.2 was not available although three P.Ws. named Asghar, Zulfiqar and Farzand Ali were present, the case was therefore, adjourned for 21-2-1998. From 21-2-1998 up to 25-5-1998 the case was delayed due to transfer of the Presiding Officer. On the appointment of the successor, further progress took place in the case on 11-6-1998 when evidence of six P.Ws. was recorded. On 25-7-1998, Allah Rakha, Farzand Ali and Asghar Ali P.Ws. were present but the case was adjourned due to the absence of the defence counsel. Again on 27-8-1998 learned counsel for respondent No. l and Rafiq accused was not present. On this date also Allah Rakha, Zahid, Farzand Ali and Asghar P.Ws. were in- attendance. On 5-10-1998 evidence of formal witnesses was recorded. Three eye-witnesses named Allah Rakha, Farzand Ali and Qasim Ali were present but their evidence could not be recorded due to absence of the defence counsel. On 21-10-1998 learned counsel for respondent No.2 did not turn up although the Court had been waiting for him., The interim order passed on the said date shows that the Court remained busy in dictating judgment in another murder case. Apparently, this was done because the present case could not proceed due to absence of the defence counsel. Thus, it is evident that from 2-10-1997 up to 21-10-1998 seven adjournments were obtained by the accused in the midst of the trial. The trial Court appears to be absolutely wrong in observing that delay of about one month had occasioned due to the adjournments obtained by the accused. This view, as explained above, is contrary to the record. Moreover, the Court below did not follow the rule laid down by the Hon'ble Supreme Court in the case of Abdur Rashid (supra) and illegally granted bail on the basis of (erroneous) mathematical calculation. He failed to p consider the cumulative effect of the adjournments obtained by respondents Nos. l and 2 due to which delay had been occasioned in conclusion of the trial. I Therefore, respondents Nos. 1 and 2 were not legally entitled to claim bail on f' the ground of delay under the 3rd proviso to section 497 of the Cr.P.C. After wrongly granting bail to Abdul Shakoor, respondent No. l vide order dated 12-3-1999, the trial Court also allowed bail to respondent No.2 on the application of the rule of consistency. Since respondent No. l was allowed bail by the trial Court in a fanciful and arbitrary manner, the rule of consistence requires that bail granted to respondent No.2 be also cancelled.

Headnotes / Summary

Judgment & Decree