2006 PLP 1308 (YLR)

SH. HAKIM ALI, J.

Delay in lodging of an F.I.R. Delay in the investigation of a case. Delay in the conclusion of trial of a case. All these three delays are to bring multifarious results and consequences to a case. First part, as noted above compels one to think over, as to why the delay was made in reporting the matter to the police. Doubts and supposition that some premeditation and pre-consultation would have been taken while reporting the occurrence are raised in the case. Decelerated pace in the interrogation and investigation sometimes causes extinction of material evidence, which would be most relevant to bring out the real culprits to the door of justice. Slacken attitude of prosecution in the trial of criminal case causes mental torture and agony to an innocent, who is lodged in jail. It gives out an impression of mala fides on the part of prosecution. The instant case is one, where involvements of abovementioned third situation has been noticed, stated and agitated by learned counsel for the accused. How this third situation has arisen, it can be seen when the following facts are examined.

2. On 14-11-2003, Mehar Bakhat Ali, resident of Basti Bindra, Bahawalpur, lodged and F.I.R. No.318 of 2003 with Police Station Saddar, Bahawalpur, initially under sections 324/34 of the P.P.C., which was afterward converted into section 302 of the P.P.C., with regard to an occurrence having been taken place at about 3-00 p.m. Narrating the incident, aforesaid Bakhat Ali stated in the aforesaid report that he was supplier of milk to army. There was a vacant plot lying of Malik Fazal Ahmad and Masood Ahmad sons of Malik Khuda Bakhsh, residents of Bindra (in Bindra). Upon this plot, both these brothers were continuously fighting against each other. At about 3-00 p.m., both these brothers were quarrelling upon this plot. Many neighbours were also present thereon. Shahid Ali, brother of informant was also there. Someone had informed the inforant that his (informant's) brother was standing at the scene of quarrel and let him direct to return home from there, as there was previous enmity with Malik Fazal Ahmad and Masood Ahmad. Upon this information, the informant proceeded to that place. When he reached at the bank of canal, he saw that Malik Fazal Ahmad commanded his brother Maqbool Ahmad to start fire through his rifle upon them because they were their old foes. Upon this Maqbool Ahmad fired upon these two brothers (informant and Shahid Ali) through his rifle .222 bore, which could not hit the informant and his brother. After that, Malik Fazal Ahmad directed his son Aurangzeb alias Shahzad, who was armed with a pistol to fire upon them. Due to this, Aurangzeb fired through his pistol, which hit the brother of informant upon his chest. The brother of the informant had fallen down upon the earth. Thereafter Malik Fazal Ahmad directed two unknown persons, who were armed with Sotis to cause injuries with Sotis but due to hue and cry and finding Shahid Ali pooled in with blood, all the accused had decamped after resorting to firings. Bashir Ahmad and Fayyaz Ahmad had also witnessed the occurrence. Shahid Ali was brought to B. V. Hospital, Bahawalpur where he was admitted in an unconscious condition in an emergency room.

3. After leaving the victim, registration of F.I.R. was done. Case was investigated by the police. It is an important fact that near about seven police officials had investigated the case but all had found that fire-shot of Maqbool Ahmad had hit the deceased which had caused the resultant death of Shahid Ali, deceased. The petitioner was arrested on 19-12-2003. After usual investigation by the police, report under section 173 of the Cr.P.C. was submitted before the learned concerned criminal Court. Dissatisfied with the report, Bakhat Ali filed a complaint under sections 302/324/148/149/201 of the P.P.C. Therefore, the proceedings of trial took their commencement on the basis of this complaint.

4. Aurangzeb, petitioner prayed for grant of pre-arrest bail before the learned Additional Sessions Judge, Bahawalpur but could not avail of benefit of concession of bail from that Court on 5-12-2003. Therefore, he filed Cr. M. No.1459-B-2003/BWP in this Court. As order dated 5-12-2003 was not passed on merits by the learned Additional Sessions Judge, therefore, after obtaining protective bail from this Court on 10-12-2003, he applied for bail before arrest before the learned Additional Sessions Judge again but that too was dismissed on 14-5-2004. The petitioner had applied for post-arrest bail firstly in this Court through Cr. M. No.615-B-2004/BWP, but it was withdrawn on 21-9-2004. Again Cr. M. No.1281-B-2004/ BWP was filed for post-arrest bail but it was dismissed for non-prosecution on 29-11-2004. He filed another Cr. M. No.114-B-2005/BWP but it was also withdrawn on 4-4-2005. He filed an application before the learned Additional Sessions Judge, Bahawalpur which was also dismissed on 20-4-2005. Another Cr. M. No.464-B-2005/BWP was filed in this Court, in which Court had directed the learned trial Court to conclude the trial within two months from the date of receipt of the order of this Court with the parties' learned counsel's consent on 15-7-2005, with liberty to the petitioner to file bail petition afresh, if the trial was not finished up within that period. Hence this Cr. M. No.1208-B-2005/BWP on 7-11-2005.

5. Learned counsel for the petitioner submits that in spite of direction of this Court to conclude to trial within two months, the prosecution has failed to produce its evidence with no fault of the petitioner. He has complained against the attitude of informant who is protracting the case. Referring to 1997 PCr.LJ 949 (Sarnawaz and another v. the State), he has submitted that it tantamounts to abuse of the process of law. He has also cited 2002 SCMR 282 (Muhammad Saeed Mehdi v. The State and 2 others) and states that the petitioner is not to be punished by detaining him behind the bars. He has further argued that many Gazetted Officers had investigated the case but had found the petitioner innocent although he was found present at the place. Praying for grant of bail, it has been addressed by the learned counsel that the present petitioner had in fact lodged an F.I.R. No.324 of 2000 against Shahid, deceased and others, in the month of August, 2000. So, the petitioner was involved falsely in the case. In 1994 SCMR 549 (Sher Muhammad and 2 others v. The State and 4 others) although according to the F.I.R. accused had fired short but during investigation was found abettor only, was granted bail. Upon the strength of this, learned counsel has prayed for grant of bail. Place of occurrence was upon the lands of the accused. Pistol was recovered from Maqbool Ahmad while no recovery was made from the petitioner. Insisting upon the delay in the trial and the efforts of the prosecution to keep the petitioner behind the bars, he has presented the grievance of petitioner by expressing that up-till now only 4 P.Ws. have been examined while there are 16 witnesses in total, which are to be produced and examined in the case. Therefore, in this situation, the petitioner is entitled for the grant of bail as all the witnesses listed in the police challan are also to be examined under section 540-A of the Cr.P.C. as Court witnesses. He has cited 1998 Pakistan Criminal Law Journal 1689 (Mst. Naziran v. Saifal and others), (2002 YLR 1714 (Zakar Ullah v. State), 2000 SCMR 641 (Mst. Rasoolan Bibi v. The State and another), 2001 PCr.LJ 244 (Mst. Kausar Shaheen v. Said Rasool and 3 others), PLD 1966 Supreme Court 708 (Nur Elahi v. The State), PLD 1979 SC 53 (Zulfiqar Ali Bhutto v. The State) and 1997 SCMR 334 (Karim Bakhsh v. Zulfiqar and 4 others). It has also been argued by the learned counsel that prosecution is intentionally prolonging the case and is not producing its witnesses. He has referred to order sheet of the learned trial Court to show as to how prosecution was creating delay in the trial of the case so as to keep the petitioner in Jail. One of the accused due to this delay in the trial has also left Pakistan to complete his higher study in U.K. So, still trial is not to be proceeded with unless proceedings against that accused are completed for his absence.

6. Opposing the bail, it has been vehemently replied by the learned counsel for the informant that the petitioner has been nominated in the promptly reported F.I.R. and a specific role of hitting the deceased has been ascribed to the petitioner. Therefore, the petitioner is not entitled for the grant of bail after arrest.

7. Learned A.A.-G. has shown no inclination towards the defence or the prosecution.

8. After considering the arguments and consulting the record, it has transpired that Nazar Abbas, DSP, Shah Hussain, SP (Crimes), Sikandar Hayat, DPO, Nazar Hussain, Inspector, Qazi Riaz Ahmad, S.-I., and 2 others had investigated the case but all had found concurrently the petitioner to be not guilty of firing upon the deceased as alleged in the F.I.R. They had found the present petitioner not guilty of the occurrence.

9. It has been found by me also that even after passing of direction from this Court to conclude the trial within two months, upon the consent of both the learned counsel, the informant/prosecution has failed to bring on record the entire evidence, with these two months, From the orders-sheet, the informant/prosecution has been found not bringing their evidence, and using delaying tactics to keep the petitioner in Jail for longer term, which in fact has created a sense of deprivation of justice to and against the petitioner, who is lodged in jail after passing of more than two years without any of his fault except the allegations/accusations levelled against him by the informant in the F.I.R. The opinion of the police officials who have exceeded from 5 to 7 in numbers, all have found the petitioner innocent. Although the opinion of the police is not binding yet in the facts and circumstances of the case when no recovery was made from the petitioner and recovery of pistol was made from Maqbool Ahmad co-accused, case of the petitioner requires further probe. Failure of prosecution/ informant to produce even a witness within two months of direction creates an impression that the informant was not serious to allow the trial to be concluded in near future. Not a single witness was got examined within these two months of direction. It has also come to my notice that one of the co-accused, namely, Jamshaid has proceeded to U.K., from this country to complete his higher study as trial was expected to take many months to conclude. So, process of his abscondance and his summoning process has still to be completed through legal process which would. take sufficient time to complete. Sixteen witnesses of prosecution in toto are to be examined. The detention of the petitioner having expanded to a span of more than two years and the attitude of delaying tactics employed by the informant has compelled me to grant the petitioner the concession of bail. Therefore, I accept this application and admit the petitioner to bail after arrest in the aforesaid case subject to his furnishing bail bond in the sum of Rs.1,00,000 (One lac rupees) with two sureties each in the like amount to the satisfaction of the learned trial Court. H.B.T./M-143/L Bail granted.