2001 P Cr (PLP)

Sardar Muhammad Ishaque Khan for Petitioner. Sayeda B.H. Shah for the State. Malik Rab Nawaz Noon for the Complainant. The petitioner seeks bail in case F.I.R. No.331 registered with Police Station Gujar Khan, District Rawalpindi, on 20‑8‑1999 under section 302, P.P.C. at the instance of Haji Mazhar Hussain.

2. The allegation against the petitioner is that he strangulated Mst. Farooq Akhtar daughter of the complainant and wife of the petitioner to death. He was arrested soon after the lodging of the F.I.R. and as such he has undergone judicial confinement for more than one year. After usual investigation, the petitioner was found guilty and was sent up to face trial in the Court of learned Additional Sessions Judge, Rawalpindi, which is pending and has not been concluded so far.

3. It is argued that from the facts narrated by the complainant himself in the F.I.R. the case of the petitioner would be covered by section 306, P.P.C. and as such if found guilty, he will be liable to be convicted under section 308, P.P.C. The maximum punishment under that section is prescribed 14 years' R.I. If the offence is punishable up to 14 years' R.I. then under proviso (2) to section 497, Cr.P.C. and in case the trial is not concluded within a period of one year, then the accused person is entitled to the concession of bail. It is accordingly prayed that on the ground of statutory delay in conclusion of the trial, he should be extended this concession.

4. The bail has been opposed by the State as well as by the learned counsel for the complainant.

5. It is admitted by the learned counsel that the charge has been framed under section 302, P.P.C. but it is contended that framing of charge under section 302, P.P.C. does not mean that the conviction would be recorded under that section especially when on the allegation levelled against the petitioner, the case, at the maximum, would be covered by section 308, P. P. C. The argument may look to be sound but the same cannot be accepted for the reason that it is for the trial Court to determine after appraisal of evidence as to what offence is made out. The learned counsel has placed reliance on the case of Khalil‑uz‑Zaman v. Supreme Appellate Court, Lahore and 4 others PLD 1994 SC 885 wherein the accused person who had killed his wife had been convicted under section 302, P.P.C. but the conviction was set aside and the case was remanded with an observation that section 302, P.P.C. was not constituted. The learned counsel, however, is not aware of the fact that the judgment cited by him had been reviewed by the Honourable Supreme Court. It has also been laid down recently by the Honourable Supreme Court that when the allegation is of murder then the charge has to be framed under section 302, P.P.C. The same has been done in the instant case. It would, therefore, be prematyre and unjust to hold that ultimately the offence would be covered by section 308, P.P.C. and not by section 302, P.P.C. proviso (3) to section 497, Cr.P.C. cannot be pressed to the extent that in the first instance, the Court should determine without trial as to which offence is likely to be constituted on the basis of facts brought on the record so far, and thereafter, the benefit of the proviso should be extended to an accused person. The contention raised by the learned counsel, therefore, suffers from fallacy which cannot be acceded to. Apart from the aforesaid question of law, even on factual plan, it is argued by the prosecution that all the material witnesses have been examined. The conclusion of the trial is quite in sight, the exercise sought to be undertaken by the learned counsel for the petitioner will materially prejudice the case of the prosecution at trial stage.

6. In view of what has been observed above, I am not inclined to admit the petitioner to bail. This application is accordingly dismissed. N.H.Q./M‑451/L Bail refused.