2003 PLP 79 (MLD)

This is a bail application under section 497, Cr.P.C. moved by applicants Muhammad Nawaz alias Deno and Muharram, who are charged for offence under sections 302, 324, 148, 149 and 114, P.P.C. in Crime No.7 of 2000, Hatri Ghulam Shah, P.S. and facing trial in Special Case No. 11 of 2000 pending before learned Additional Sessions Judge/Special Judge, S.T.A., Larkana. Learned counsel for the applicant frankly submits that earlier bail application, touching to the merits of the case, moved by the applicants was dismissed by this Court vide order, dated 13‑8‑2001. He further submits that applicants have now again approached this Court for grant of bail on the sole ground that directions contained in the aforesaid order for disposal of their case within two months from the date of receipt of the order have not been complied by the trial Court and such failure of the trial Court entitles the applicants for grant of bail. To fortify this contention, learned counsel placed reliance on the following cases:‑‑ (1) Gul Hassan Pehyar v. The State (1997 SCMR 390). (2) Jadeed Gul v. The State (1998 SCMR 1124). (3) Muhammad Aslam v. The State (1999 SCMR 2147). (4) Liaquat Ali v. The State (2000 PCr.LJ 1317). Learned counsel did not dispute that in view of the dictum laid down in the case of The State v. The Zubair and 4 others (PLD 1986 Supreme Court 173) the applicants are estopped from repeating fresh bail application on same grounds. Mr. Muhammad Bachal Tunio, the learned Additional Advocate‑General has opposed such prayer for grant of bail to the applicants/accused. We have carefully considered the arguments advanced by the learned counsel and perused the case referred at the bar. There is no cavil to the principle laid down in the cases referred above but at the same time it is also well‑settled legal position that in criminal cases there is no universal rule of application which can be applied to every case; as it will be the facts, circumstances and merits of each case which will determine its fate. This view is fortified from the castes reported as PLD 1978 SC 236 and PLD 1987 SC

467. Reverting to the cases referred by the learned counsel it would suffice to observe that in none, of these cases bail was allowed to the accused involved in offence under sections 302, 324, P.P.C., where even two years' period had not expired. Moreover, question of grant of bail in all these cases was evaluated on taking into consideration the nature of offence vis‑a‑vis hardship faced by an accused, who had remained in custody for sufficient period as under-trial prisoner. It is significant to mention here that now even 3rd proviso to section 497(1), Cr.P.C. which earlier entitled an accused for grant of bail on expiry of prescribed period of his arrest and subject to certain conditions has also been omitted with effect from 13‑8‑2001. This proviso was an additional factor which used to be taken into consideration for grant of bail on the principle of hardship caused to an accused, who had remained in custody for sufficient period. It needs to be clarified that indulgence shown by the superior Courts by issuance of such directions for the trial Court to conclude cases within some specified period are only meant/aimed to expedite proceedings of the case against the accused and not to arm them with so called new ground for bail in case of non‑compliance of such directions, as vehemently argued by Mr. Muhammad Ayaz Soomro. It will be seen that such a concept is totally alien to any statutory provision. Learned counsel, when asked to refer any provision of law in this context also failed to do so. As observed above in the cases referred by learned counsel also the question of grant of bail to an accused was taken into consideration on the principle of hardship, with reference to the nature of consideration offence and the period for which accused had remained in custody without conclusion of trial and not merely due to non‑compliance of earlier directions. Reverting to the facts of the case in hand, it will be seen that the applicants have been charged for offences under sections 302, 324, P.P.C. which had taken place on 15‑5‑2002 i.e. even the minimum required period under the omitted 3rd proviso to section 497(1), Cr.P.C. viz., two years has not expired as yet, and, as evident from the order of the learned trial Court dated 13‑11‑2001, all sincere efforts are being made to expedite disposal of the case. In the circumstances discussed above, we are not inclined to order release of the applicants on bail simply for the reason that the direction contained in the order, dated 13‑8‑2001 could not be complied by the trial Court. In the result this bail application is dismissed. The trial Court is, however, directed to expedite the disposal of Special Case No. 11 of 2000 in accordance with law. N.H.Q./M‑385/K Bail refused.