P L D 2013 Lahore 646 (PLP)

SHAHID HAMEED DAR, J.

The petitioner seeks post-arrest bail in case F.I.R. No.218, dated 13-5-2008, for offences under sections 395 and 412, P.P.C., registered at Police Station Baraghar, District Nankana Sahib.

2. The relevant facts for consideration are that Mehboob Alam (complainant) along with his family members slept at his house, at night between 12/13-5-2008, when they suddenly got up on a slight inkling and found seven unknown armed men brandishing their weapons at him; the accused threatened, if he raised alarm, he would be shot at and killed; three of the accused tied his hands on the back and rendered all other inmates of the house hostages, snatched cash, cell-phone, gold-ornaments, wrist-watches, licensed pistol etc., worth lacs of rupees, at gunpoint and fled the spot with the looted articles.

3. The complainant rendered a supplementary statement on 17-9-2010, whereby he implicated Riaz alias Mabdal (petitioner), Nawaz alias Jajji, Mukhtar alias Mukhtari, Zaheer, Fakhroo, Imran and Maqbool Ahmad in this case on the basis of his personal inquiry and knowledge, whereafter, Riaz alias Mabdal (petitioner) was arrested on 20-9-2010 and sent to judicial lock-up for test identification parade, which took place on 29-9-2010, in proceedings whereof Mehboob Alam-complainant, Muhammad Nawaz and Amanat Ali, correctly picked him up. The accused/petitioner was formally arrested on 4-10-2010 and he got recovered gold-ornaments weighing thirteen tolas and rifle 8-MM on 14-10-2010. The Investigating Officer prepared a memo of identification qua these ornaments on 14-10-2010.

4. Learned counsel for the petitioner submits that the petitioner has been falsely involved in this case under a conspiracy by the complainant, who is of the same village, where the petitioner hails from; the test identification parade is of no consequence as complainant and his co- witnesses knew the petitioner for years prior to the alleged occurrence; the gold-ornaments and rifle 8-MM have been planted upon the accused so as to fabricate incriminating evidence against him; the petitioner is behind the bars for more than three years and his trial has not concluded so far; he is not a hardened, desperate or dangerous criminal, therefore, he may be set al liberty.

5. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant opposes with the contention that the petitioner's first bail application (Criminal Miscellaneous No.4246/B of 2012) was dismissed, having not been pressed, on 8-6-2012, with a direction to the trial Court to conclude the trial within three months, excluding the summer vacation; the prosecution witnesses have appeared before the trial Court on countless occasions, but they returned unexamined only due to non-availability of learned defence counsel; the petitioner, his co-accused and their learned counsel have occasioned delay in conclusion of the trial, which is evident from the order-sheet qua trial of the accused; no fresh ground exists in favour of the petitioner, hence, he may not be granted the relief of bail.

6. After hearing learned counsel for the parties and perusing the record, it is observed that the instant petition, on behalf of the petitioner, is third on the trot, the first one (Criminal Miscellaneous No.4246/B of 2012) was dismissed as having not been pressed vide order dated 8-6-2012, after arguments at some length, with a direction to the trial Court to speed up the proceedings of the trial, so as to conclude it within three months. The second application (Criminal Miscellaneous No.18559/13-2012) was dismissed due to non-prosecution on 31-12-2012.

7. There is no cavil to the proposition that withdrawal of a post-arrest bail application synchronizes with exhaustion of all the grounds available, rendering it expedient, for the accused to search for a fresh ground, not available to him earlier and having arisen subsequent to the withdrawal-order, so as to move second or subsequent bail application(s). The petitioner himself decided to abandon his right of bail on 8-6-2012, hence, it is incumbent on him to fulfil aforesaid condition to press for release on bail. It is important enough that the ground of statutory delay in conclusion of trial was also shelved along with other grounds by the petitioner on the said day i.e. 8-6-2012. It was not a situation of withdrawal-simpliciter as is manifest from the bail dismissal-order, which hints at advancement of arguments at some length by learned counsel for the petitioner, who having anticipated the outcome of his oratory, took a decision to bring pre-mature halt to his quest for bail. The ratio decidendi of the judgment titled: The State through Advocate-General, N.W.F.P. v. Zubair and 4 others (PLD 1986 SC 173) certainly envisages, as to what an accused needed most after dismissal of his first/earlier bail application as withdrawn, the reply to which is hidden in a fresh circumstance/ground, arisen thereafter. The record reveals that the direction for conclusion of trial within three months went begging, mainly due to stubbornness of the defence, as they sought repeated adjournments when prosecution witnesses were in attendance. The accused stretched their irresponsible behavior to such an extent that they told the learned trial Court on 20-2-2013, when five prosecution witnesses appeared in the witness box, that they were yet to engage a defence counsel. There cannot be a worse example of non-seriousness, non-cooperation and idiotic-obduracy. No one else but the petitioner and his co-accused have occasioned delay in conclusion of the trial, which brings their case within the mischief of Exceptional clause of fifth proviso to section 497(1), Cr.P.C. and they cannot blame anyone else for the disqualification earned.

8. For the discussion supra, I am not inclined to accept this application, which is accordingly dismissed. MWA/R-4/L Bail refused.