1997 PLP 1336 (MLD)

Abdul Malik alias Palla v. The State 1988 PCr.LJ 1798; Muhammad Sadiq and others v. The State 1980 SCMR 203; Allah Ditta and others v. The State 1990 SCMR 307 and Muhammad Ismail and others v. The State PLD 1989 SC 585 ref. Sahibzada Farooq Ali for Petitioner. Ch. Mahboob Ahmad for Respondent No. l Mahar Muhammad Saleem for the State. Munir Ahmad respondent‑accused is involved in case F.I.R. No.2, dated 3‑1‑1993 registered at Police Station Bohar Gate, Multan under section 302/34, P.P.C. He is alleged to have committed the murder of Sabir deceased at 6‑45 p.m. on 3‑1‑1993 by inflicting the Chhuri blow in his left flank and also injured Rana Amjad and Abdul Sattar P.Ws. The occurrence was seen by Abdul Aziz complainant, Talib and Malik P.Ws.

2. Munir Ahmad respondent was arrested on 8‑1‑1993. The challan at present is in the Court of an Additional Sessions Judge, Multan. The charge against him was framed on 4‑6‑1994 and the recording of evidence was commenced on 7‑7‑1994. The statements of all the P.Ws. except the Investigating Officer have been recorded.

3. On 19‑3‑1995 Munir Ahmad respondent‑accused filed his application for his admission to bail on the statutory ground contained under clause (b) of proviso III to subsection (1) of section 497, Cr.P.C. according to which an accused punishable with death shall be entitled to be admitted to bail whose continuous period of detention has exceeded two years and whose trial for such offence has not concluded. After hearing the parties the Additional Sessions Judge relied on the rulings published as 1983 SCMR 72 and PLD 1983 Lahore 24 and holding that the trial against the accused has not concluded within a period of two years of his continuous detention admitted him to bail. Feeling aggrieved the complainant has filed this application for the cancellation of bail which has been resisted by Munir Ahmad respondent‑accused.

4. I have heard the learned counsel for the parties as well as learned State Counsel and gone through the record before me. Learned counsel for the petitioner‑complainant relied on Abdul Malik alias Palla v. The State (1988 PCr.LJ 1798 Lahore) according to which the accused whose detention had exceeded two years and during the trial 11 P. Ws. had been examined and date for recording of remaining evidence was fixed was not admitted to bail. He also relied on Muhammad Sadiq and others v. The State (1980 SCMR 203), Allah Ditta and others v. The State (1990 SCMR 307) and Muhammad Ismail and others v. The State (PLD 1989 Supreme Court 585) and argued that when a case is fixed for hearing the accused should not be admitted to bail. On the contrary the contention of the learned counsel for Munir Ahmad respondent‑accused is that the wording of clause (b) of proviso III to subsection (1) of section 497, Cr.P.C. has to be given the weight according to which an accused whose trial has not concluded within a period of two years from the date of his arrest is entitled to be admitted to bail as of right and such a concession is not available to an accused who is hardened, desperate or dangerous criminal or involved in terrorism. He relied on Dur Muhammad v. The State (PLD 1983 Lah.24) and Nazir Hussain v. Ziaul Haq and others (1983 SCMR 72) in support of his contention. I agree with the learned counsel for the petitioner‑complainant and express that in the circumstances it was not a case for admission of Munir Ahmad to bail. In the instant matter the charge was framed on 4‑6‑1994. The first P.W. was examined on 7‑7‑1994. The trial is going on and the next date of hearing is 4‑6‑1995 of which date the only witness who remains to be examined has been summoned who is the Investigating Officer. It shows that one year towards the conclusion of the trial would elapse on the next date of hearing before the trial Court. My view is that the trial is being conducted in a perfunctory manner and loose control of the Presiding Officer and in such a state of affairs it is neither fair nor just to grant the aforesaid statutory concession for the purpose of admission of bail to Munir Ahmad respondent‑accused. In the aforesaid judgments of the Hon'ble Supreme Court of Pakistan relied upon by the learned counsel for the petitioner, in case the trial has started the accused may not be admitted to bail. In the aforesaid case 1988 PCr.LJ 1798 Lahore the accused was not admitted to bail against whom the trial was not concluded within two years as I1 P.Ws. were examined and the date of recording the remaining evidence was fixed. In PLD 1983 Lahore 24 the accused was admitted to bail on the ground that he was arrested on 18‑6‑1980 whose two years of detention in jail expired on 17‑6‑1982 and only two formal witnesses namely Muhammad Khan, Constable and Abdul Sattar, A.S.I. were present on 19‑1‑1982 whose statements were not recorded even on that date. In 1983 SCMR 72 the bail granted by the High Court to the accused whose continuous period of two years of detention had not expired was cancelled. In the instant matter the working of the trial Court is also playing the part towards delay regarding the conclusion of the trial. The prosecution or the complainant are not at fault thereof. It is the legal duty of the Presiding Officer to get served witnesses of the trial through ordinary manner or by adopting the coercive measures. The protracted trial of an accused would not grant him the legal benefit of the instant nature professed by the learned counsel for the accused for his admission to bail. I am tempted to express that no doubt an accused is the favourite child of law. However, it is also the duty of the Court to keep in mind the shape of scale of justice as the prosecution/complainant party is also entitled to due status and weight. Consequently I hold that there was no legal justification to admit Munir Ahmed respondent‑accused to bail on the statutory ground.

5. I, therefore, accept this application, set aside the impugned order dated 30‑4‑1995 passed by the Additional Sessions Judge and cancel the bail allowed to Munir Ahmed respondent‑accused. He has been put under the custody of Naib Court to be sent to the District Jail, Multan with the direction that he be produced before the learned trial Court on 4‑6‑1995. N.H.Q./A‑854/L ???????????????????????????????????????????????????????????????????????????????????????????? Bail cancelled.