1997 P Cr (PLP)

Rai Muhammad Hayat Kharal for Respondent No. 1 Tariq Shamim, A.A.-G. for the State. I Muhammad Hanif son of Bahaar Ali Bhatti of Kotli Lal, Police Station Sadar Nankana Sahib, seeks cancellation of bail granted to Muhammad Tariq respondent No.l by learned Additional Sessions Judge vide order, dated 12-4-1995, in case F.I.R. No.47 of 1992 under section 302/34, P.P.C.

2. The facts of the case, as alleged by the first informant, briefly, are that Mst. Shamim Bibi, daughter of Muhammad Ashiq, the real brother of the complainant, was married to Munir Ahmed son of Ahmed about 6/7 years prior to the occurrence. Munir Ahmed was already married to one Mst. Manzooran in exchange of his two real sisters, Sarwar Bibi and Zubaida Bibi who were wedded to Manzooran's brothers, Aslam and Hamza. 10/15 days prior to the occurrence there arose differences between Mst. Manzooran and her husband Munir Ahmad and Mst. Manzooran left for her parents house in an angry mood. As a retaliatory measure, Mst. Zubaida and Sarwar also left their husbands and came back to their parents. Tariq respondent No. 1 who was sister's son of Mst. Manzooran, felt incensed and accused Mst. Shamim Bibi that she was instrumental in creating unhappy situation between Mst. Manzooran and her husband, Munir Ahmed and that he would teach her a befitting lesson. At about 6-00 p.m. on 18-2-1992 Tariq respondent armed with carbine alongwith other accused appeared in the complainant's house where Mst. Shamim, his wife Mst. Hafeezan and his nephew, Muhammad Malik, were present. He fired at Mst. Shamim who had been captured by hit associates. Mst. Shamim died at the spot on receipt of fire-arm injuries.

3. Respondent No. l applied for his bail before the learned Additional Sessions Judge, Nankana Sahib on 15-2-1995 on statutory ground with the averments that he was arrested on 29-2-1992 and was released on bail on 9-12 1993, thus, he retrained in jail' for one year and ten months. Subsequently, the complainant side moved for cancellation and his bail was cancelled by the High Court vide order, dated 22-2-1994 (in Criminal Miscellaneous. No. 180/CB of 1994). Again he remained in jail from 22-2-1994 to 12-4-1995 when he was released on bail by the learned Additional Sessions Judge, as such, he remain in jail for over two years and 10 months. The learned Additional Sessions Judge 1 granted him bail on statutory ground. .

4. It is contended by learned counsel for the petitioner that the learned Additional Sessions Judge, has misdirected himself in interpreting the third proviso to section 497, Cr.P.C. inasmuch as it is the continuous detention for over two years which entitles an accused person to the right of bail and not otherwise. In this case the respondent once remained in jail for one year and ten months and then for one year again, as such, he failed to fulfil the condition laid down by law. Thus, the learned Judge while granting him bail on statutory ground, has obviously travelled beyond the limits of law. Learned counsel emphatically argued that phraseology of the third proviso makes it amply clear that it was the continuous and uninterrupted period of two years which clothed the accused with the right to be released on statutory ground and not otherwise, particularly in a case of this nature when death is attributed to him. According to him, the learned Additional Sessions Judge should have been more careful in applying the law in its true perspective particularly when the High Court had once cancelled his bail.

5. It is, however, pointed out by learned counsel for the respondent that the lave has provided the concession of bail on statutory ground to an accused whose trial is not concluded within the given period and this provision of law should be construed liberally.

6. Learned A.A.-G. argued that there have been two different views expressed by the authorities depending on facts of each case. One view is that it should be construed strictly and if the accused has not been in jail for continuous period of two years, then, he is not entitled to this concession, of course, this is to be seen with particular reference to the circumstances of each case. The other view is that if the commulative detention is more than two years, bail ought to be allowed.

7. Arguments have been heard and record perused. In this case there is direct allegation against respondent No.l of firing at Mst. Shamim Bibi and his shot proved to be fatal. The broken period of his detention in jail does not appear to be helpful to him because the legislature has clearly intended to take into consideration an uninterrupted and unbroken period of two years for such a concession. Authorities can, indeed, be cited on both sides. The third proviso to section 497, Cr.P.C. has been interpreted strictly as well as liberally. Reference in this behalf can be made to 1968 PCr.LJ 1311, 1968 SCMR 683, 1976 SCMR 413, PLD 1977 Lah. 679, PLD 1977 SC 434, 1980 PCr.LJ 323, 1983 SCMR 72, 1984 PCr.LJ 1301 and 1985 PCr.LJ 2190.

8. In this case, to my mind, liberal construction will fail to advance the cause of justice. The correct interpretation that fosters justice shall have to be made while keeping in view the peculiar circumstances of each case. Respondent No. 1 was the sole accused whose straight fire was alleged to be the cause of death of an innocent woman. Consequently, this petition is accepted and the bail allowed to respondent No.l vide the impugned order is hereby recalled. The trial Court, however, shall dispose of the matter within two months positively under intimation to D.R. (J.) of this Court. N.H.Q./M-340/L Bail cancelled.