1999 PLP 2005 (MLD)

(1995 SCMR 1973); In this case appellants were convicted for an offence under section 365-A/34, P.P.C. by the learned Special Court Il, Karachi Suppression of Terrorist Activities. The appeals against the convictions were dismissed. Therefore, appellants approached the Hon'ble Supreme Court, where their appeals were also dismissed. Learned counsel for the accused/applicant have drawn attention of the Court to the observations of their Lordships in this very case to the effect that as per proviso to Articles 38 and 39 of Qanun-e- Shahadat, confessional statement made to a police office or in presence of a police officer would be inadmissible in evidence unless it leads to discovery of a fact. (1993 SCMR 550): In this matter appellants Syed Saeed Muhammad Shah and Khuda Bakhsh Sheedi were convicted as follows: Syed Saeed Muhammad Shah was found guilty for an offence under section 10(3) of Zina (Enforcement of Hudood) Ordinance, 1979 and was sentenced to suffer R.I. for 15 years and 30 stripes. Khuda Bakhsh Sheedi having been found guilty of abetting the offence committed by Saeed Muhammad Shah was convicted for offence under section 10(3) of the Zina Ordinance read with section 109/34, P.P.C. and was sentenced to suffer R.I. for three years. The appellants approached the Hon'ble Supreme Court and their Lordships were pleased to set aside their convictions and sentences and appeals were allowed: 'Learned counsel for the applicant has drawn attention to the observations of their Lordships that statements recorded by police after delay and without explanation are to be ruled out of consideration. Whereas in this very authority their Lordships have further observed that each criminal case has its own peculiar facts and circumstances and it is the question of satisfaction of the Court which depends upon evidence produced by the parties. (1993 SCMR 1321): In this matter bail was granted by their Lordship of the Supreme Court mainly on the ground that F.I.R. was lodged after the delay of nearly 20 days and the witnesses were not named in the F.I.R. and police statements were recorded after 21 days from the date of incident. (1994 MLD 862): In this matter a learned Judge of this Court was pleased to grant bail to the applicants on the ground that two prosecution witnesses were examined by the police for the first time after '20 days of the occurrence who had implicated the accused in the commission of the crime. Whereas said witnesses had not explained as to why they did not give the names of the accused and the information given by them regarding the commission of the offence immediately to the complainant. (1998 SCMR 190): In this case their Lordships of the Supreme Court have held that right of accused for bail under third proviso to subsection (1) of section 497, Cr.P.C. can be defeated on any other ground except the delay mentioned in the relevant clause and the grounds provided in the fourth proviso thereof. (1991 PCr.LJ 2335): In this case learned Judge of this Court granted bail to the applicant/accused observing that accused were apprehended on information of Interpol from Holland for exporting heroin in a consignment of dusters and that accused were in jail for more than one year and delay in concluding trial was not attributable to them. Further, that accused were involved in another case but simply for that -reason could not be considered to be dangerous or hardened criminals. (1998 PCr.LJ 358): In this case their Lordships of the Supreme Court (AJ&K) have observed that trial would be deemed to be concluded only when the statements of all the prosecution witnesses, statement of the accused under section 342, Cr.P.C. and the statements of the defence witnesses, if any have been recorded, and further that while dubbing a person as a hardened or desperate criminal each case has to be decided in view of the material on the record and not on the basis of mere allegations. With due respect to the authorities mainly which are decisions by the Superior Courts while appeals were filed against the judgments of the Courts below and in some cases appeals were allowed because charge-sheets were not filed before the concerned Courts, names of the accused and their witnesses were not mentioned in the F.I.R. whereas in some cases witnesses were examined with delay without plausible, proper convenience reasons, whereas in this case Ex. Flight Lt. of P.A.F. is involved and according to prosecution allegation while applicant was in active service of P.A.F., wearing the uniform her booked A and despatched the alleged wooden boxes from the Railway Station Risalpur O.C. P.A.F. and were to be received as. O.C. at P.A.F. Base Maripur Karachi. In this case inquiry was held by D.-G. I.S.I. and through detailed investigation prosecution arrested the accused/applicant and submitted charge sheet before the trial Court where admittedly all the material prosecution witnesses have been examined and only the evidence of hand writing expert is yet to be recorded. Whereas unfortunate aspect of this case is that criminal revision application filed by the applicant bearing No. 13 of 1997 was admitted by this Court on 24-3-1998 with the following observations. Mr. Syed Tariq Ali, Standing Counsel very rightly and friendly' raises no objection if this revision application is admitted for regular hearing. Contentions raised by the learned counsel for the applicant require consideration. Admit. Notice. " Nowhere in this order it was desired that R&Ps of the case from the learned trial Court may be summoned even then office on their own accord summoned R&Ps which is lying in this Court vide Letter No. 1140, dated 28-3-1998 and the R&Ps was received in this Court on 30-3-1998 with the result that further progress in the case could not be done. Admittedly accused/applicant in another case was convicted by the learned Special Judge (Customs and Taxation) Peshawar. The conviction of the applicant in this case was maintained by the learned Peshawar High Court but sentence was reduced from six years R.I. to three years R.I. as mentioned hereinabove, but their lordships of the Hon'ble Supreme Court were pleased to grant leave to consider all these questions. However', notice was ordered to be issued to the petitioner and the State as to why the sentence should not be enhanced. The contention of the learned counsel for the applicant that final charge sheet was not submitted before the learned trial Court, that names of the witnesses does not appear in F.I.R, that any confessional statement if made by the accused before D.-G. I.S.I. should not be considered and that trial Court has not jurisdiction to adjudicate the matter. In my humble opinion all these contentions are misconceived in as much as the crime so committed was committed in such a manner that prosecution no doubt took sufficient time to procure necessary evidence, documents from the concerned railway authorities and the concerned officers of Pakistan Air Force as well as D.-G. I.S.I. personnel. In this type of crimes naturally at the time of lodging of the F.I.R. it is practically impossible to either mention the names of the accused of the witnesses till-the investigation takes place and chain of the circumstances is connected so, that culprits may be apprehended. It is also an admitted fact that in another drug trafficking case also accused/applicant stands convicted. The competent Authority in view of the above facts and circumstances even without getting the order of the Court considered it fit to dismiss the applicant from the service of the Pakistan Air Force. Nowadays it has been commonly observed that after getting bail and furnishing surety usually in drug trafficking cases accused abscond away with the result that trial before the Trial Courts are unnecessarily handicapped/suspended. Advisedly I refrain to dilate upon the points raised, regarding non service of notice under section 171 of the Customs Act upon the accused, non production of the property before the trial court and alleged confession made by the accused/applicant before the D.-G., I.S.I. by the learned counsel for the applicant/accused in detail so that the case of either party may not be prejudiced before the trial Court as the trial is likely to be concluded very soon. For the foregoing facts, circumstances, reasons and history of the accused 'appellant I find no substance or, merits in this bail application which is hereby dismissed. However keeping in view the continuous custody of the accused/applicant the learned trial Court is required to expedite the disposal of the case and conclude the trial at least within a period of 4 months from the receipts of the orders. The R&Ps of the case bearing No.165 of 1995, State v. Sajid Sharif Randhawa received by this Court on 30-3-1998 may be returned back immediately to the learned trial Court. Since R&Ps has been summoned from the learned trial Court, without specific orders of this Court, explanation of the concerned person dealing with the matter may be called for, so that proper action may be taken against him. The applicant/accused may repeat the bail application before the learned trial Court if the trial is not concluded within the stipulated period if he is so advised. Above are the reasons of short order dated 28-5-1998 N.H.Q./S-179/K Bail refused