2004 P Cr (PLP)

Muhammad Kasir for the Complainant. This is the third bail application filed on behalf of the applicant Muhammad Arif who alongwith his co‑accused Muhammad Shahzad is facing trial in the Court of learned Sessions Judge, Karachi (South) in Sessions Case No.593 of 2001 being Crime No. 110 of 2001 of Police Station Artillary Maidan, Karachi registered under section 302/34, P.P.C. on 22‑6‑2001 at 1‑00 hours.

2. The allegation against the applicant is that on 21‑6‑2001 at about 22‑15 hours, he and his co‑accused Muhammad Shahzad committed murder of Khalid who was brother of the complainant Muhammad Nasir.

3. By an order, dated 8‑10‑2001 application for bail filed on behalf of present applicant Muhammad Arif and co‑accused Muhammad Shahzad was dismissed on merits after tentative appraisal of the evidence collected by the police/prosecution during the investigation. However, it was observed that the applicants may repeat their bail application before the learned trial Court after recording of the evidence of the two eye witnesses namely Shahzeb Khan and Pervez. It appears that another Bail Application No. 1197 of 2002 was filed on behalf of the applicant in this Court which was heard and dismissed by my learned brother Muhammad Roshan Essani, J. In view of the statement of the learned counsel for the applicant that he did not press the said bail at that stage as he intended to move the trial Court with fresh grounds. However, in view of the request of the learned counsel trial Court was directed to dispose of the case within a period of two months. After expiry of the said period of two months an application for bail was filed before the learned trial Court on behalf of applicant on the grounds that the case was not decided within the said specified period of two months as ordered by his Court and that two witnesses namely Shahzeb Khan and Pervez have been examined out of whom Pervez has not supported the prosecution's case and statement of Shahzeb Khan also calls for further inquiry under the circumstances of, the case.

4. Mr. Ali Ahmed Junejo learned counsel for the applicant has argued that non‑compliance of the order of this Court and the evidence of P. W. Pervez has made it a case of further inquiry. The applicant is in jail for last about 22 months whereas co‑accused Muhammad Shahzad has been granted bail by the learned trial Court on the basis of such evidence but bail was declined to the present applicant though his case is identical to that of his co‑accused. Learned counsel has further argued that according to rule of consistency the applicant also deserves to be released on bail. In support of his contention he has referred to the cases of any Abdul Sattar v. The State 1982 SCMR 909 and Shahzad v. The State 1996 PCr.LJ 978.

5. Mr. Qazi Khalid Ali learned Additional Advocate‑General has opposed to the grant of bail and argued that case of applicant Muhammad Arif is not identical to that of co‑accused Muhammad Shahzad. P.W. Shahzeb has fully implicated the applicant by stating that the person who fired at the deceased is present in Court and identified the applicant to be the same person. It was, therefore, argued that there are reasonable grounds to believe that the applicant has committed the alleged offence. Learned Additional Advocate‑General has further pointed out that six (6) witnesses have been examined so far and on most of the dates witnesses had to go back unexamined due to non‑availability of learned counsel for applicant Muhammad Arif hence the non‑conclusion of the trial within the specified period of two months cannot be considered to be a, ground for bail.

6. Mr. Muhammad Nasir learned counsel for the complainant has placed on record the case diaries to show that on a number of dates witnesses ware present but they had to go back unexamined due to non availability of the learned counsel for applicant. He has referred particularly to the case diaries of 14‑11‑2002, 28‑11‑2002, 14‑12‑2002, 6‑1‑2003, 23‑1‑2003, 10‑2‑2003, 24‑3‑2003 and 8‑4‑2003. He has pointed out that on the last date viz. 8‑4‑2003 five (5) witnesses were present including the concerned police officials but they had to go back as the learned counsel for the applicant was called absent. He has further submitted that in their statement P.Ws. Pervez and Shahzeb Khan have identified both the accused to be the same persons involved in the murder of Khalid. In support of his contention that non‑compliance of the time specified by a superior Court for conclusion of the trial while deciding a bail application cannot be deemed to be a fresh ground for bail. Learned counsel has relied upon the case of Saleh Muhammad v. The State 1983 SCMR 341 wherein it has been held that non‑compliance of the said order cannot be deemed to be a fresh ground when the earlier bail application was either dismissed on merits or dismissed as not pressed. He has also placed reliance on the case of Muhammad Nawaz alias Deno and others v. The State 2003 MLD

79. I have considered the arguments of the learned counsel for the applicant, learned Additional Advocate‑General and learned counsel for the complainant. Case of the applicant is distinguishable froth that of co accused Muhammad Shahzad who has been granted bail by the learned trial Court. It cannot be said that there is no evidence to connect the applicant with the commission of the offence and the delay in disposal of his case has made him entitled for grant of bail particularly when the case was being, adjourned on his behalf despite the witnesses being available. Non‑completion of a criminal trial within the specified time given by this Court; cannot be deemed to be a fresh ground particularly where the accused/applicant or any body on his behalf is responsible for such delay. To assess and appraise the evidence of P. Ws. Pervez and Shahzeb Khan at this stage in such a manner as proposed and suggested by the learned counsel for the applicant would amount to deeper appreciation of the evidence, which is not permissible under the law at this stage. In view of the discussion made above no case appears to have been made out for grant of bail to accused applicant Muhammad Arif and as such this bail application is rejected. Learned trial Court should expedite the trial. N.H.Q./M‑9/K Bail refused.