P L D 1993 Lahore 808 (PLP)

Having been arrested in pursuance of accusations of the commission of offenses punishable under section 302/324/452/34, P.P.C. vide F.I.R. No.198 of 1991 of P.S. Garjakh of District Gujranwala and having been refused bail by the lower Courts, Muhammad Khalid respondent had approached this Court through Crl. Misc. No.2021-B of 1992 for his release on bail. Having examined the merits of the case and having considered the grounds urged before me, I had dismissed the said petition on 14-6-1992 through an order passed by me in the said petition.

2. Khalid respondent then petitioned the learned Sessions Court at Gujranwala, for grant of bail to him and it was a learned Additional Sessions Judge at Gujranwala. (Mr. Mehmood Khalid) who released him on bail on 16-5-1993 on: statutory ground, being an additional and a new ground- asserted for grant of bail" as is apparent from para. 7 of the said bail granting order.

3. This petition submitted by Haji Sharif complainant seeks cancellation of the said bail.

4. The occurrence in the present case had taken place on 1-7-1991 where after, Khalid respondent had been arrested in the present case. The impugned bail had been allowed on 16-5-1993 when almost two months remained for the completion of the statutory period entitling an accused person to claim bail on the said ground as envisaged by the third proviso to section 497(l) of the Cr.P.C. Thus, the statutory ground for grant of bail was not available to the respondent when the learned A.S.J. allowed him bail on that ground. The learned A.S.J. was thus, clothed with no authority to release the accused person on bail in anticipation of the expiry of the said statutory period. It may also be mentioned here that while so doing, the learned A.S.J. had not given any finding and appears not to have considered that the delay which had occurred in the conclusion of the trial was or was not attributable to the said accused person. 4-A. Reliance has very heavily been placed by the learned A.S.J. on a judgment of the Supreme Court reported as 1983 SCMR

790. In this precedent case, the accused person had been released on a bail not on account of the expiry of the statutory period but on the ground that despite a lapse of eight months, no progress had been made in the trial. Each case proceeds on its own facts. Nevertheless, it may be mentioned here that this Court had refused bail to Khalid respondent on 14-6-1992 when almost eleven months had elapsed and some of the witnesses had yet been examined at the trial. This ground was thus, available to the said accused when the matter had been earlier consider by this Court through Criminal Miscellaneous No. 2012/B-92 and was thus not a fresh ground which had accrued to the said accused for approaching the learned Sessions Court for his release on bail.

5. The bail allowed to the accused-respondent by the learned A.S.J. is thus, legally and factually untenable. In the circumstances, the said bail allowed to Khalid respondent through the above mentioned order dated 16-5-1993 passed by a learned A.S.J. (Mr. Mehmood Khalid) of Gujranwala is re-called.

6. Before I part with this order, I must observe that it has not been possible for me to appreciate the jurisdiction exercised by the learned A.S.J. in granting the impugned bail and the order in question passed by the said learned A.S.J. lacks not only in legality but even in propriety. The said learned A.S.J. needs to be more judicious and careful while exercising the powers vesting in him.

7. The Registrar shall place this observation of mine on the service book of the said learned A. S.J. A copy of this order shall also be placed before the Hon'ble Inspecting Judge of the High Court for Gujranwala District for his Lordship's information and another copy of this order shall be sent to Mr. Mehmood Khalid, A.S.J. of Gujranwala wherever, he be presently posted. N.H.Q./M-1133/L BAIL CACELLED