1999 PLP 1382 (MLD)

The brief prosecution matter of the case was that Khushi Muhammad lodged the F.I.R on 10-1-1991 stating therein that while he alongwith Moula Bux his brother, Muhammad Anwar, and Mst. Sardaran were cutting the fodder near his Dera. All of sudden Rab Nawaz Mirza Machhi armed with .12 bore guns, Mohri armed with .12 bore pistol, Maqbool Qooli, Mirza and Toora armed with lathies came there. Rab Nawaz raised Laikara and thereafter, fired a Moula Bux hitting on his chest. Mirza Machhi fired at Muhammad Anar hitting on his right thigh. Rab Nawaz fired another shot hitting Muhammad Anar on his right arm. Moori fired at Muhammad Anar hitting on his hip. Motive alleged was that Rab Nawaz was desperate and man of bad character whom Moula Bux had forbidden to come to their locality on account of which two days earlier Rab Nawaz stripped off Moula Bux's clothes and gave him beatings. Moula Bux reported it to his son and relatives and apprehending that they would take revenge Rab Nwaz alongwith co-accused came and committed the murder. Bail application was moved before the learned Judge in Chamber and was contended that respondent Rab Nawaz was arrested on 5-1-1992, subsequently escaped on 17-6-1992 and was again re-arrested on 18-1-1994, thus a total period of two years having been passed, he was entitled to bail as a matter of right under the third proviso of subsection (1) of section 497, Cr.P.C. and further that learned counsel pointed out that prosecution witnesses have been examined and in such circumstances bail should not be cancelled. In this background of the matter Khushi Muhammad petitioner approached the Honourable Supreme Court of Pakistan, wherein their Lordships observed as under:-- "Admittedly respondent No. 1 had escaped from the custody and was re arrested more than 1/1-2 years afterwards. This act itself was sufficient to refuse the exercise of discretion vested in the Court. In such circumstances it is not necessary to enter into the merits of the case or to make any observation in it and therefore no prejudice would be caused during trial. Further that two years period has been calculated by adding the period of detention respondent No. 1 had passed before he absconded and after his arrest. The third proviso relied upon by the learned counsel for the respondent No. 1 speaks of continuous period of detention and not by adding intermittent periods caused by the illegal and unlawful act of the accused. The impugned order set aside. The bail granted to respondent No.l was cancelled. Non-bailable warrants were issued for his arrest." (4) 1997 SCMR 1097: In this matter according to F.I.R. incident happened on 3-5-1994 at about 1-30 p.m. when the complainant and a chowkidar of the Office of Saving Centre, New Karachi, reported that he had gone to his house for taking tea. When he returned after 15 minutes a boy whose name he did not know but could identify him, came outside and told him that he has come from the head office. He asked him to open the shutter of the Saving Centre which the complainant refused and asked him to come in the morning. The boy went away. On 3-5-1994 at 11-00 p.m. the same boy came alongwith 8/9 boys with the muffled faces. The three persons with the muffled faces caught hold of him and snatched the keys of Centre. Three of them stood by side and asked him not to raise any noise or to runaway otherwise he would be killed. All other persons opened lock of the shutter of the Centre, sprinkled pertrol on the office furniture and put it on fire and were raising slogns of Jeay Mohajar. While running away they took away .12 bore gun. In F.I.R he suspected one person whom he could identify and the other 8/9 persons had committed the crime at the instance of M.Q.M. Leader Altaf Hussain. In this case accused was arrested on 3-5-1994 and charge was not framed against the petitioner who submitted application for bail before the Special Court, on refusal bail application was submitted before this Court which was rejected by impugned order dated 12-9-1996. Keeping in view the continuous custody of two years in detention their Lordships of Supreme Court were pleased to grant bail. Mr. Abdul Fatah Mughal on behalf of A.A.-G raises no objection for the grant of bail application. It would be pertinent to refer observations made by learned Second Additional Sessions Judge, Larkana rejecting the bail order, dated 15th July, 1997 which is as follows:-- "The record shows that after committing the murder of deceased Qurban Ali, both the applicants/accused were apprehended by the complainant party and police party at the spot alongwith the crime weapons, on 28-12-1993. The case was received in this Court by way of transfer for disposal according to law on 29-5-1994. Charge was framed against the accused on 16-6-1994. Thereafter, though the P.Ws. were attending the Court but- the defence counsel was moving the application for adjournments, and also on 18-8-1994 accused Khalid moved application from District Jail, Larkana that the trial of this case be conducted inside Jail as they apprehend danger to their life. On 9-3-1995 the Notification was received from Home Department for holding trial of this case inside jail. Again the accused moved application to the Honourable High Court for transfer of the case from this Court and hence due to the above reasons the case was being adjourned from time to time. On 8-2-1996 the complainant and two P.Ws. were examined inside District Jail. Larkana but their cross examination was reserved on the request of defence counsel and on 1-8-1996 both the accused persons were transferred from District Larkana to Central Prison Sukkur. During the trial of the case, the applicants/accused have also changed some Advocate to get the case adjourned and avoiding to proceed with the case, on one or the other pretext, though mostly on the dates for hearings, the witnesses were in attendance. If the period of adjournments sought by the accused persons themselves or on their behalf by their advocates, is deducted from the actual detention period, then they have not yet completed the period of two years. In view of the-above circumstances, the delay in conclusion of the trial, is on the part of the accused and not on the part of prosecution, as the counsel for the accused have frequently been moving applications for adjournment though the examination-in-chief of complainant and two P.Ws., was recorded on 8-2-1996, and whenever they and other P.Ws. attend the Court, the defence counsel moved application for adjournment hence the delay in the trial is caused by the accused persons. Accordingly at this stage the applicants/accused are not entitled to the concession of bail on the ground of statutory delay in the trial. " The case is being adjourned at the request of the applicants/accused or learned counsel appearing/acting on their behalf. The examination-in-chief of the witnesses have been recorded but cross examination has been reserved at the request of the counsel appearing for the applicants. At the request of the accused/applicants Government, accordingly, was pleased to order that trial of the case should take place inside the jail. The presence of witness and their non-examination at the request of the accused/applicants clearly shows that delay which has occasioned in the conclusion of the trial is clearly attributed to the accused/applicants. With due respect to the case-law referred by Mr. Muhammad Anwar' Durrani I am of the considered opinion that facts of the cases referred by Mr. Durrani and discussed hereinabove in any case have no relevance to the facts of the case in hand. The state counsel no doubt has raised no objection for grant of concession of bail, but in view of the history of the case, adjournments so sought by the accused/applicants, in any case under the above facts and circumstances, does not observe to be released on bail. Consequently, application is dismissed. However, trial Court is required to take steps to conclude the trial expeditiously H.B.T./K-38/K Bail application dismissed.