2009 Y L R 1731

[Lahore]

Before Saif-ur-Rehman, J

ABDUL REHMAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.1540-B of 2008, decided on 5th November, 2008.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.365-B & 376---Bail, grant of---Further

inquiry---Contention of accused that alleged abductee refused to make statement under
S.164, Cr. P. C. before the Area Magistrate, was supported by the record in the light of
which statement recorded under S.161, Cr.P.C. made by the victim/alleged abductee, had
made case as one of further inquiry---One of co-accused being absconding conclusion of
the trial was delayed---Trial Court also had failed to have a proper grip on the conclusion
of trial which was not desirable---Accused could not be kept in jail for an indefinite
period---Accused was admitted to bail, in circumstances.

Sh. Abdul Samand for Petitioner.

Ashfaq Ahmad Malik, DGP for Respondents.

ORDER

SAIF-UR-REHMAN, J.---The petitioner has moved this petition for his release on
bail in case F.I.R. No.84 dated 17-2-2007 under sections 376/365(B), P.P.C.
registered at Police Station Jampur District Rajanpur.

2. It is alleged in the F.I.R. that the petitioner along with his co-accused abducted
Mst. Shahnaz Mai aged about 17 years and she was subjected to Zina-bil-Jabr by
them.

3. Learned counsel for the petitioner submitted that earlier petition for post-arrest
bail moved by the petitioner was dismissed as withdrawn after direction was passed
by this Court for conclusion of the trial within three months which direction,
however, could not be complied with an not a single P.W. has been recorded so far,
therefore, request was made that petition moved by the petitioner be disposed of on
merits.

4. It was urged that the abductee was produced before the Court of learned Area
Magistrate on 15-6-2007 for her statement under section 164, Cr.P.C. She stated
before the learned Magistrate that she was being forced by her father to make
statement according to his wishes and that she be lodged in Dar-ul-Aman, as a result
of which the lady was sent to Dar-ul-Aman. It was next urged that F.I.R. was lodged
with unexplained delay of about six days.

The case against the petitioner was false. Co-accused of the petitioner namely Razi
had been allowed bail by the learned Addl. Sessions Judge with similar role. During
the police investigation, it had come to light that the petitioner had left with Ghulam
Mustafa absconding accused with her free consent. Both Ghulam Mustafa and Shehnaz
Mai were caught by police of Police Station City Rajanpur and from there, the girl
was handed over to her father. It was submitted that vaginal swabs were not sent for
chemical analysis and this has been confirmed by the learned trial Court in its report
dated 13-10-2008 as well. The petitioner has been in the Jail for the last about eight
months without any progress in the trial. For all these reasons, this was' a case of
further inquiry.
5. Opposing the petition, learned Deputy Prosecutor-General submitted that in her
statement dated 17-2-2007, the abductee had fully implicated the petitioner in the
occurrence. The petitioner and three of his co-accused were involved in offence of
capital punishment. The challan had been submitted in the Court. Deep appreciation
of facts and law was not required at this stage and any observation recorded by this
Court may cause prejudice to the case of the complainant.

6. Contention of the petitioner that the abductee refused to make statement under
section 164, Cr.P.C. on 15-6-2007 before the learned Area Magistrate is supported
by the record in the light of which the statement dated 17-2-2007 recorded under
section 161, Cr.P.C. made by the victim per se makes this case as one of further
inquiry. One of the co-accused is absconding, therefore, conclusion of the trial was
delayed. The learned trial Court also failed to have a proper grip on the conclusion
of trial which is not desirable. The petitioner cannot be kept in the Jail for an
indefinite period. .

7. In view of the above, this petition is allowed and the petitioner is admitted to bail
subject to furnishing bail bonds in the sum of Rs.1,00,000 with one surety in the like
amount to the satisfaction of the learned trial Court.

H.B.T./A-136/L Bail granted.

2008 P Cr. L J 708

[Lahore]

B efore Iqbal Hameedur Rahman, J

KHUDA BAKHSH----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous No.787/B of 2007, decided on 19th September, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 148 & 149---Bail, refusal of---
Contention raised by counsel for accused required deeper appreciation of evidence, but at
the bail stage, only tentative assessment was to be made---Trial of the case was likely to
be concluded in the near future---Accused having remained absconded for about four
months, on that account, he was not entitled to grant of bail---Charge had been framed
and prosecution evidence had been completed and the trial was being delayed on account
of accused---Bail, could not be granted to accused, in circumstances.

Allah Ditta v. The State 1990 SCMR 307; Muhammad Nawaz v. The State 2002 SCMR
1381; Mushtaq Ahmad v. The State 2000 YLR 1695 and Muhammad Usman v. the State
2007 YLR 937 rel.

Ch. Muhammad Iqbal for Petitioner.

Bashir Ahmad Bhatti, D.P.G. for the State.

Altaf Ibrahim Qureshi for the Complainant.

Ghulam Ali, A.S.-I.

ORDER

IQBAL HAMEEDUR RAHMAN, J.--- The petitioner seeks post-arrest bail in case
F.I.R. No.286, dated 14-8-2006 registered under sections 302, 148 and 149, P.P.C. at
Police Station Sadar Shujabad, District Multan.

2. Briefly stated the prosecution case as contained in the F.I.R. is that on 14-8-2006 at 11-
30 a.m. the complainant and his brother Nazir Ahmad went to see flood water. All of a
sudden Khuda Bakhsh petitioner, Ghulam Yaseen, Muhammad Sharif, Sabir Hussain and
Muhammad Ajmal came there. Ghulam Yasin co-accused raised Lalkara that Nazir
Ahmad could not be spared and caught hold of him from his collar and pressed his throat
while the co-accused inflicted kicks and fist blows on body of Nazir Ahmad. The
complainant and his companions attempted to rescue Nazir Ahmad but all the accused
threatened him. Nazir Ahmad deceased fell down and the accused fled away from the
spot. Nazir Ahmad died at the spot.

3. It is contended by learned counsel for the petitioner that there is no pre-meditation in

the case and there is only one injury on the deceased; that according to the report of
Bacteriologist, the cause of death of the deceased had occurred due to heart failure, as
such the death of the deceased cannot be attributed to the petitioner; that no injury is
attributed to the petitioner; that the petitioner has not been attributed any vital role in the
commission of the offence and only the petitioner has been attributed vicarious liability
which needs further probe and the same is to be determined after the recording of the
evidence; that there is no other evidence on the record to connect the petitioner with the
commission of the offence and that the petitioner is 62 years old person.

4. On the other hand, bail application has been opposed by the learned D.P.-G, as well as
learned counsel for the complainant, contending that although no weapon has been used
but the accused persons have with kicks blows caused severe damage to the internal
organs of the deceased; that according to the post-mortem report, the bladder was half
filled with blood and death is due to injury No.1; that the intention can be developed at
the spur of moment as such the contention that there was no premeditation does not hold
the field; that on 6-4-2007, charge has been framed and the evidence of the prosecution
has been completed and the trial is progressing and in this respect he has placed on record
the interim order-sheet of the trial Court, wherein the accused persons have repeatedly
sought adjournments and on account of the conduct of the accused persons, the trial could
not be concluded; that the trial is at final stages; that the case had been registered on 14-
8-2006 while the petitioner had been absconder till 20-12-2006 and next date of hearing
is 22-9-2007 and that when the trial is proceeding, bail cannot be granted.

5. Arguments heard. Record perused.

6. Contentions raised by learned counsel for the petitioner go into deeper appreciation of
evidence and at the bail stage, only tentative assessment is to be taken into consideration.
Since the next date of hearing is 22-9-2007 and the trial is likely to be concluded in the
near future, I am deliberately not attending to the merits of the case lest it my prejudice
the case of either party. Reliance in this respect is placed upon Allah Ditta v. The State
1990 SCMR 307 and Muhammad Nawaz v. The State 2002 SCMR 1381. The case was
registered on 14-8-2006 and the petitioner remained absconder till 20-12-2006 and on
this account the petitioner is not entitled to the grant of bail. In this respect reliance is
placed upon Mushtaq Ahmad v. The State 2000 YLR 1695 and Muhammad Usman v.
The State 2007 YLR 937. Charge has been framed and the prosecution evidence has been
completed and the trial is being delayed on account of the petitioner/accused, therefore,
bail cannot be granted. Resultantly, this petition is dismissed.

H.B.T./K-45/L Bail refused.

P L D 2008 Karachi 492

Before Khalid Ali Z. Qazi, J

THE STATE---Petitioner

Versus

MUHAMMAD AYOOB---Respondent

Criminal Suo Motu Revision No.79 of 2002, decided on 23rd June, 2008.

(a) Criminal Procedure Code (V of 1898)---

----S. 497---Bail, grant of---Powers of Magistrate---Magistrate cannot grant bail unless

the matter falls under one of the following categories viz., (i) if the person seeking bail
has been placed under actual custody; or (ii) he appears in answer to a process issued by
the Court; or (iii) he is brought before the Court by the police or by some other arresting
authority---There is no legal concept of a "judicial custody" by way of a voluntary
surrender before the Court---Unless and until the accused is under actual restraint or
custody by the police or other law enforcing authorities/agencies, he cannot be construed
to be in "custody".

Muhammad Sharif v. The State 1979 PCr.LJ Note 7 page 5: Muhammad Saeed v. The
State 1980 PCr.LJ 17; Hidayat ullah Khan v. The Crown PLD 1949 Lah. 21; The Crown
v. Khsuhi Muhammad PLD 1953 FC 170; Sadiq Ali .v. The State PLD 1966 SC 589;
Muhammad Ayub v. Muhammad Yaqoob PLD 1966 SC 1003; Juma Khan v. The State
PLD 1960 Pesh. 25; Hakim Ali Zardari v. The State PLD 1998 SC 1; Wajid Ali v. The
State 1983 PCr.LJ 183; Raza Muhammad v. The State 1995 PCr.LJ 1190 and Taj
Muhammad v. The State PLD 1976 Pesh. 112 ref.

(b) Judicial custody--

----Connotation---There is no legal concept of a "judicial custody by way of a voluntary

surrender before the Court---Unless and until the accused is under actual restraint or
custody by the police or other law enforcing authorities/agencies,' he cannot be construed
to be in "custody".

(c) Criminal Procedure Code (V of 1898)---

----S. 497(5)-Penal Code (XLV of 1860), Ss.471/468/420---Cancellation of pre-arrest bail

granted by Judicial Magistrate, refusal of---Accused had surrendered himself before the
Judicial Magistrate who vide impugned order had admitted him to bail---Validity---Held,
the order of the Judicial Magistrate admitting the accused to bail was not in consonance
with law, since in essence the Magistrate had granted bail before arrest to him, when he
had no such power---There was no concept of a "judicial custody" by way of 'a voluntary
surrender before the Court---Unless and until the accused was under actual restraint or
custody by the police or other law enforcing agencies, he could not be construed to be in
"custody"---However, the case was not fit to cancel the bail granted to accused at such a
belated stage for the very simple reason that on account of the Record and Proceedings
having been consigned to High Court, the trial had been delayed by 6/7 years, for which
the accused could not be attributed any blame---Even the Prosecutor-General had
conceded that cancellation of bail at such a belated stage would cause undue hardship to
the accused---Accused had been appearing on every date before High Court---Bail
allowed to accused was not cancelled in circumstances.

Muhammad Sharif v. The State 1979 PCr.LJ Note 7 page 5; Muhammad Saeed v. The
State 1980 PCr.LJ 17; Hidayat ullah Khan v. The Crown PLD 1949 Lah. 21; The Crown
v. Khsuhi Muhammad PLD 1953 FC 170; Sadiq Ali v. The State PLD 1966 SC 589;
Muhammad Ayub v. Muhammad Yaqoob PLD 1966 SC 1003; Juma Khan v. The State
PLD 1960 Pesh. 25; Hakim Ali Zardari v. The State PLD 1998 SC 1; Wajid Ali v. The
State 1983 PCr.LJ 183; Raza Muhammad v. The State 1995 PCr.LJ 1190 and Taj
Muhammad v. The State PLD 1976 Pesh. 112 ref.
(d) Criminal Procedure Code (V of 1898)---

---Ss. 497/498---Pre-arrest bail---Magistrate is not empowered to grant bail before

arrest---Caveat on the legal plane added by High Court ,to take measures and precautions
in respect of such powers of Magistrate after elucidating the concept enshrined in the
settled law.

Muhammad Sharif v. The State 1979 PCr.LJ Note 7 page 5; Muhammad Saeed v. The
State 1980 PCr.LJ 17; Wajid Ali v. The State 1983 PCr.LJ 183; Raza Muhammad v. The
State 1995 PCr.LJ 1190 and Taj Muhammad v. The State PLD 1976 Pesh. 112 ref.

Shahaddat Awan, Prosecutor-General and Amicus Curaie for the State.

F. Karim Durrani for Respondent.

Date of hearing: 23rd June, 2008.

JUDGMENT

KHALID ALI Z. QAZI, J.---The brief facts giving rise to the present matter are that an
F.I.R. No.77 of 2001 dated 11-4-2001 was lodged by one Abdul Majeed, the complainant,
against one Muhammad Ayub, the accused, alleging commission of offences covered
under sections 471, 468 and 420 of the P.P.C. The accused Muhammad Ayub surrendered
himself before the Judicial Magistrate-II, Karachi (West), who vide order dated 16-4-
2001 and while relying upon a judgment of the Lahore High Court reported as
Muhammad Sharif v. The State 1979 PCr.LJ Note 7, page 5 was pleased to admit the
accused Muhammad Ayub to bail.

2. Aggrieved against the grant of bail before arrest by the learned JM-II, the complainant
i.e. Abdul Majeed filed a Criminal Miscellaneous Application No.45 of 2001 under
section 497(5) of the Cr.P.C. seeking cancellation of bail, which was dismissed vide order
dated 31-10-2001 by the learned IVth Additional Session Judge, Karachi (West). Being
further aggrieved by the order of the learned Additional Session Judge the complainant
preferred Criminal Revision Application No.7 of 2002 before this Court.

3. It seems that the complainant Abdul Majeed lost interest and did not pursue the
Criminal Revision Application No.7 of 2002. Thus vide order dated 15-4-2002 this Court'
was pleased to convert Criminal Revision Application No.7 of 2002 into a suo motu
criminal revision, which was thereafter numbered by the office as Criminal Suo Motu
Revision No.79 of 2002. In converting the revision into a suo motu action, rather than
dismissing it for non-prosecution, the Court in its order dated 15-4-2002 had pondered
that the Judicial Magistrate had no power to grant bail before arrest. Hence notice was
issued to the accused as to why the bail before arrest granted by the Judicial Magistrate
ought not to be cancelled and the said accused remanded to custody.

4. The prime question posed in the present proceedings is whether the Judicial Magistrate
possesses the power to grant bail before arrest and if no such power vests in .him, what
should be the consequence, especially after a lapse of 7 years when the impugned order
was passed by learned Judicial Magistrate.

5. I have heard Mr. F. Karim Durrani, the learned counsel for the accused so also Mr.
Shahadat Awan, who first appeared as an Amicus curaie and then assisted this Court as
the Prosecutor General.

6. In order to dilate upon the issue as to whether the Magistrate possesses the power to
accord bail before arrest, in my opinion the case of Muhammad Sharif v. The State PLJ
1978 Criminal Case (Lahore) 553 = 1979 PCr.LJ Note 7 at page 5, serves as a starting
point. In this case the petitioner sought bail before arrest directly from the Lahore High
Court which was dismissed with the observations that even the Magistrate had ample
jurisdiction to admit a person to bail before arrest. In this respect Muhammad Afzal
Zullah J., as he then was, observed as follows:--
 "2. Learned counsel states that the petitioners cannot move for bail before arrest
before a Magistrate. Insofar as the technical phraseology "bail before arrest" used
in some rulings is concerned, this might, on face, appear to be correct; but the
provisions contained in subsection (1) of section 497, Cr.P.C. permits on accused
person to appear before a Court of Magistrate even prior to his physical arrest and
thus after presenting himself before the Court seek bail under sub-section (1) of
section .497, Cr.P.C. For all practical purposes, if the Magistrate grants bail it
would be bail before physical arrest."

In the afore-cited case, the learned counsel for the petitioner had clearly taken the stance
that the Magistrate had possessed no power to accord bail before arrest, which position
was refuted by the Court. The Court had observed that the Magistrate was empowered to
grant bail before arrest even when the accused had surrendered himself before the Court
of the Magistrate prior to his physical arrest; and the grant of bail by the Magistrate
constituted bail before arrest.

7. It is, an irony of fate that the same point came up for reconsideration before the same
learned Judge i.e. Muhammad Afsa Zullah, J., as he then was, in the case reported as
Muhammad Saeed v. The State 1980 PCr.LJ 17. In this case while the learned Judge was
pleased to observe, that his observations in the earlier judgment of Muhammad Sharif v.
The State (cited supra) were not contrary to law, but relying upon Hidayatulalh Khan v.
The Crown PLD 1949 Lahore 21. The Crown v. Khushi Muhammad PLD 1953 FC 170,
Sadiq Ali v. The State PLD 1966 SC 589 and Muhammad Ayub v. Muhammad Yaqoob
PLD 1966 SC 1003, the learned Judge was pleased to revisit the earlier judgment of
Muhammad Sharif authored by him, holding that the Magistrate could only grant bail in
the following circumstances:

"(a) if the person seeking bail has been placed under actual custody;
or

(b) he appears in answer to a process issued by the Court; or

(c) he is brought before the Court---.

(i) by the Police; or

(ii) by some other arresting authority."

8. The categories in which the Magistrate could grant bail, as under scored above, have
been deciphered from the pronouncement of the 'Hon'ble Supreme Court in the case of
Sadiq Ali v. The State PLD 1966 SC 589. A bare perusal of the above except would
confirm that in the first category bail could only be granted if the person was in actual
custody; the second category deals with a situation when a person appears in answer to a
process issued by the Court. The grant of bail in this category is only relatable to ensuring
appearance. In the third category either the police or some other law enforcing agency
brings a person before the Magistrate. This really means that there is no scope for a
person to contend that his voluntarily appearance before the Court should be construed as
"judicial custody". The concept of "custody" as enunciated in The Crown v. Khushi
Muhammad PLD 1953 FC 170 connotes that the person is under some actual restraint. In
other words, there is no concept of constructive custody before the Court or a Judge by
way of a voluntary surrender. To further make out this point reference is invited to
Jumma Khan v. The State PLD 1960 Pesh. 25 wherein it was held that the appearance
before the Court mentioned in section 497 of the Cr.P.C. is appearance in compliance
with a process issued by a Court. It was further observed that where no process for_ the
appearance of an accused person is issued by any Court and he voluntarily makes
appearance, he is neither under any form of restraint nor has he any process for his
restraint. Although the judgments in The Crown v. Khushi Muhammad and Jumma Khan
v. The State were delivered at the time when the concept of bail before arrest was till in
its embryonic state in Pakistan, the said two judgments are still good authority for the
proposition and to the extent that a voluntary surrender per se before the Court of law
cannot be construed as "custody". A word of caution is required to be placed. The latter
two judgments in negating the concept of bail before arrest are no longer good law in the
view of the development of the law of bail before arrest in our country. One may in this
respect refer to the dissenting opinion of Mukhtar Ahmed Junejo, J., as he then was, in
Hakim Ali Zardari v. The State PLD 1998 SC 1 wherein the learned Judge was pleased to
observe that the law of bail is not static but rather grows so as to mouldy itself with the
exigencies of time. Although the opinion of Mukhtar Ahmed Junejo, J., as he then was, in
the referred case was a minority view, the observations just referred hold good as a
general proposition of law. In other words, though the ultimate result as reached by the
learned Judge may not be good law, being the minority view, the referred observations
with regards the law of bail being a dynamic concept seems to be well settled.

9. Therefore, I hold as follows:--

(a) a Magistrate cannot grant bail unless the matter falls under one of the
categories mentioned in the excerpt from Muhammad Saeed v. The State 1980
PCr.LJ 17 reproduced in para. 7 above.

(b) there is no legal concept of a "judicial custody" by way of a voluntary

surrender before the Court. Unless and until the accused is under actual restraint
or custody by the police or other law enforcement authorities/agencies he cannot
be construed to be in "custody".

10. In light of the above, I have do hesitation to observe that the order of the learned
Judicial Magistrate dated 16-4-2001 admitting the accused to bail was not in consonance
with law since in essence the Magistrate had granted bail before arrest when he had no
such power as held above. But having said so this is not a fit case to cancel the bail for
the very simple reason that on account of the record and proceeding having been
consigned to this Court the trial has been delayed by 6-7 years. For this, the accused
cannot be attributed any blame. Even the learned Prosecutor General/Amicus Curaie Mr.
Shahadat Awan has submitted that it is not a fit case to cancel the bail at such a belated
stage since otherwise the said cancellation would cause undue hardship to the accused.
The learned counsel for the accused has maintained that the accused has appeared on
every date before this Court and has even executed a PR bond before this Court apart
from submitting surety/security before the Magistrate. In view of the above the bail is not
cancelled and the PR bond and. any other surety/security is kept intact.

11. Let the office remit the Record and Proceedings back to the learned trial Court
immediately whereafter it is expected that the trial Court shall expeditiously complete the
trial and pronounce judgment.

12. Before parting I wish to add a caveat on the legal plane. I have been able to lay my
hands on Wajid Ali v. The State 1983 PCr.LJ 183 and Raza Muhammad v. The State 1995
PCr.LJ 1190 where in certain observations give an impression that the Magistrate is
empowered to grant bail before arrest. Such observations so also the judgment/order in
Muhammad Shaif v. The State PLJ 1978 criminal Cases (Lahore) 553 = 1979 PCr.LJ
Note 7 at page 5 are found to be per incurium, not being the correct statement of law. The
observation in Muhammad Saeed v. The State 1980 PCr.LJ 17 to the effect the
Muhammad Sharif's case (cited supra) is not contrary to law is again per incurium.
Barring such observation, the judgment in Muhammad Saeed v. The State 1980 PCr.LJ
17 correctly states the law. In order to make the discussion complete, reference is invited
to the case of Taj Muhammad v. The State PLD 1976 Peshawar 112. In this case
petitioner had applied for a bail before arrest directly to the Peshawar High Court which
was declined on the ground that before approaching the High Court the petitioner should
first exhaust the remedy before the lower Court. It was further observed that it was only
in exceptional cases that a petitioner could directly move for bail before the High Court.
In dismissing the petition the Court was pleased to suggest that the legislature had
conferred the power to grant bail to the Magistrate at the initial stage. The relevant
excerpt in this regard from the above judgment of the Peshawar High Court is reproduced
as follows:--

"To repeat it with emphasis, I must say that though the discretion under section
498 is absolute, the High Court and for that matter the Court of Session must
exercise it judicially and since the Legislature has chosen to introduce 'the initial
stage of dealing with the question of bail to Magistrates and while the Magistrates
have ample power to exercise their discretion, in all matters barring very few, the
 High Court ought not to grant bail in such cases except for exceptional and for
very special reasons. For these reasons, I do not consider this a. fit case for bail.
The petition thus stands dismissed."

If the above judgment of the Peshawar High Court is construed as conferring upon the
Magistrate the power to grant pre-arrest bail, it will face the same fate as' the case of
Muhammad Sharif v. The State i.e. the Peshawar High Court judgment will also have to
be reckoned as per incurium. However, in my humble opinion the above extract from the
judgment of the Peshawar High Court is to be understood as only equipping the
Magistrate with the power to grant bail after arrest in offences for which the Magistrate
has the jurisdiction. The above observations, in my humble opinion, do not lay down the
principle that the Magistrate has the power to grant pre-arrest bail. .

13. Let a copy of this order be made available to the learned Registrar of this Court,
Secretary Law, Government of Sindh, Home Secretary, Government of Sindh and
Secretary Prosecution Service Department, Government of Sindh, who in turn are
directed to circulate this order to all the relevant functionaries. The Registrar of this Court
is in particular directed to circulate a copy of this order to all the Judicial Magistrates in
the Province of Sindh.

14. Before parting with the matter I wish to express my sense of gratitude for invaluable
assistance rendered by Mr. Shandat Awan, who first appeared 'as Amicus Curaie and then
assisted this Court as the Prosecutor General Sindh.

N.H.Q./S-55/K Petition dismissed.

2008 P Cr. L J 211

[Karachi]

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

ABDUL QADIR TAWAKKAL----Petitioner

Versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU, ISLAMABAD----

Respondent

Constitutional Petition No.2402 of 2006, decided on 22nd May, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984),

S.5(7)---National Accountability Ordinance (XVIII of 1999), S.16(a)---Constitutional
petition---Bail, grant of---Case, after investigation, was challaned in the Special Court
created under Offences in Respect of Banks (Special Courts) Ordinance, 1984---Pending
adjudication of the case petitioner moved bail application before High Court, which was
granted---On the application of Chairman NAB, case was transferred to Accountability
Court which was pending, but except framing of charge, no witness had been examined
by the prosecution before the Accountability Court---Petitioner was already granted bail
by the High Court, but he could not furnish the required surety as he could not arrange
the surety of amount involved in the case---Reasons assigned for granting bail were
sufficient to grant bail---Case had not proceeded since 1996---Even the Accountability
Court had not completed the trial within a period of four years after receipt of the case
and no witness had been examined by it---Accountability Court under the law was
required to complete the case within a period of 30-days as provided under S.16(a) of
National Accountability Ordinance, 1999---Proceedings of the case had been delayed for
a period of more than 10 years which amounted to abuse of process of law---Bail was
granted to petitioner.

Shahab Sarki for Petitioner.

Ainuddin Khan, A.D.P.-G. for NAB.

ORDER

1. Granted.

2. The petitioner is involved in Crime No.15/96 which was registered at police station
F.LA.-C.B.C. Karachi on 27-8-1996. After investigation, the case was challaned in
Special Court created under Ordinance IX of 1984. Pending adjudication of the case, the
petitioner moved bail application before this Court, which was granted vide order dated
22-12-1999. On the application of Chairman NAB, the case was transferred to
Accountability Court, Karachi which was received by the said Court on 2-8-2003. Since
then, the case is pending. Except framing of charge, no witness has been examined by the
prosecution before the Accountability Court.

In the above circumstances, the learned Advocate for the petitioner has stated that the
petitioner was already granted bail by this Court in the sum of Rs.597.3789 Million as the
bail amount was fixed keeping in view the statutory provisions of section 5(7) of
Ordinance IX of 1984, but he could not furnish the required surety as he could not
arrange the surety of amount involved in the case. He has further stated that the petitioner
may be allowed to remain on same bail but requested that surety amount may be reduced
because after transfer of the case, the statutory provisions of the said Ordinance would
not be applicable. The learned A.D.P.-G. has stated that as the bail has been granted by
this court and no change in circumstances have taken place therefore he has no objection
in allowing the petitioner to remain on same bail but the surety amount may be reduced to
the amount which is involved in the Reference.
We have examined the order granting bail to the petitioner. The reasons assigned for
granting bail are sufficient to grant bail at this stage also. Furthermore the case has not
proceeded from 1996 to this date. Even the Accountability Court has not completed the
trial within a period of four years after receipt of the case and no witness has been
examined by the court as per statement of learned Advocate for the petitioner and
confirmed by A.D.P.-G. Under the law Accountability Court is required to complete the
case within a period of 30 days as provided under section 16(a) of NAB Ordinance. The
proceedings of the case have been delayed for a period of more than 10 years which
amounts to abuse of process of law.

In these circumstances, we grant bail to the petitioner in the sum of Rs.10,00,000 (Rupees
ten Lacs only) on furnishing solvent surety and P.R. bond in the like amount to the
satisfaction of the Nazir of this Court.

The petition is allowed.

H.B.T./A-130/K Bail granted.

2007 P Cr. L J 165

[Karachi]

Before Rahmat Hussain Jafferi, J

IRSHAD ALI----Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.6 of 2005, decided on 11th January, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4---Bail,

grant of---Accused had been involved in the case for offence punishable under Art.4 of
Prohibition (Enforcement of Hadd) Order, 1979, which carried punishment of two years
only---State counsel had stated that he had not received report of Chemical Analyzer---
Five months had passed, but report had not been sent to prosecution enabling it to
proceed with the case---Case had already been delayed for about five months and it was
not known as to when Chemical Analyzer's report would be received by prosecution and
case would be posted for regular trial---Accused had already remained in jail for a period
of five months for an offence carrying punishment of two years---Case being fit where
accused could be released on bail, he was admitted to bail'.

Nisar Ahmed G. Abro for Applicant.

MushtaqueAhmed Kourejo State Counsel.

ORDER

RAHMAT HUSSAIN JAFFERI, J.--- On 19-7-2004 at 9-00 p.m., the complainant

A.S.-I. Akhtiar Ali apprehended the applicant near his house in a street of Valeed
Mohalla, Larkana and secured 200 grams of Charas from his possession. A sample was
drawn from the property. The property was sealed. The applicant was arrested and such
Mashirnama was prepared in presence of Mashirs. The property and the
accused/applicant were brought to the police station, where the A.S.-I. lodged the report
under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979. A bail
application was moved before the trial Court, but the same was dismissed, hence the
application.

The learned Advocate for the applicant has stated that the punishment provided under
Article, 4 of the Prohibition (Enforcement of Hadd) Order, is 2 years; the case has been
challaned and it is not expected to be decided very shortly because of the large number of
cases pending before the trial Court, therefore, he has requested for the grant of bail. The
learned State counsel conceded the above position and raised no objection to the grant of
bail.

The applicant has been involved in the case for offence punishable under Article 4 of the
Prohibition (Enforcement of Hadd) Order, 1979, which carries punishment of 2 years
only. The learned State counsel has stated that he has not received the Chemical
Analyzer's report so far. As such, 5 months have passed, but still the report has not been
sent to the prosecution enabling them to proceed with the case. As such, the case has
already delayed for about 5 months. It is not known as to when the Chemical Analyzer's
report will be received by the A prosecution and the case will be posted for regular trial.
The applicant has already remained in jail for a period of 5 months for an offence
carrying punishment of 2 years.

In these circumstances, this is a fit case where the applicant can be released on bail.
Consequently, bail is granted to the applicant in the sum of Rs.50,000 (Rupees fifty
thousand) on furnishing solvent surety with P.R. bond in the like amount to the
satisfaction of trial Court. The application is allowed.

H.B.T./I-23/K Bail granted.

2005 M L D 1084

[Lahore]

Before M.A. Shahid Siddiqui and Sardar Muhammad Aslam, JJ

ZULFIQAR ALI alias ZULFI---Petitioner

Versus

THE STATE---Respondent

Crl. Misc. No.2538-B of 2004, decided on 14th September, 2004.

Criminal Procedure Code (V of 1898)-----

----S.497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4 ---Control of

Narcotic Substances Act (XXV of 1997), S.9(b)--Bail, grant of---First Information Report
revealed that small quantity of 150 grams of Opium was recovered from the
accused---Accused had never been involved previously in any other offence of similar
nature--Trial of accused was unnecessarily delayed---Bail was allowed to accused in
circumstances.

Rana Jehanzeb Khan for Petitioner.

Zafar Mehmood Anjum for the State.

Abdul Ghani, S.I. with record.

ORDER

Zulfiqar Ali alias Zulfi petitioner is involved in a case under Articles 3/4 of the
Prohibition (Enforcement of Hadd) Order 4 of 1979, read with section 9(b), Control of
Narcotic Substances Act, 1997 registered with Karam Pur Police vide F.I.R. No.278 of
1999 dated 23-9-1999. According to the F.I.R. 150 grams of opium was recovered from
the possession of the petitioner.

2. The learned counsel appearing on behalf of the State has brought to our notice that the
petitioner has never been involved previously in any other offence of similar nature. The
trial of the accused is un-necessarily put to delay. Keeping in view the small quantity of
narcotic substances we feel inclined to allow this petition. Consequently, this petition is
accepted and petitioner is released on bail provided he furnishes bail bond in the sum of
Rs.50,000 with one surety in like amount to the satisfaction of the learned trial Court.

N.H.Q./Z-65/L Bail allowed.

2003 P Cr. L J 1416

[Karachi]

Before S. Zawwar Hussain Jaffri, J

ANWAR and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.270 and 271 of 2003, decided on 29th May, 2003.

Criminal Procedure Code (V of 1898)-----

----S. 497---Penal Code (XLV of 1860), Ss.354-A/338-F(i)/147/148/149/109---Offence of

Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.18---Bail, grant of---Bail
applications earlier filed by accused in the High Court were not pressed by accused on
merits and High Court directed the Trial Court to examine complainant and two
prosecution witnesses within specified period, but Trial Court could not comply with said
direction of the High Court---Accused persons were in continuous custody for more than
two and half years and they were not responsible for delaying the trial---Freedom of
individual being a precious right, accused persons could not be detained for indefinite
period ---F.I.R. was lodged with delay of 15 days---Trial Court had delayed disposal of
case and accused were in custody for more than two and half years---Accused persons
having made out a case for grant of bail, they were granted bail.

1997 SCMR 207; Muhammad Sadiq v. Muhammad Shafi and another 1973 SCMR 212;
Sher Zaman v. Muhammad Azad and another 1978 SCMR 248; Manzoor Khan v. Kamir
and 4 others 1972 SCMR 207; 1994 PCr.LJ 12; Ashok v. The State 1997 SCMR 436 ref.

Ali Nawaz Dehraj for Applicants.

Behram Khan Ujjan (absent) for the Complainant.

Ghulam Rasool Rind for the State.

ORDER

By this single order, I intend to dispose of two bail applications on behalf of the
applicants Anwar, Kadir Bux and Khuda Bux, who are facing trial under sections 354-A,
337 F(i), 147, 148 and 109, P.P.C. read with section 18 and Offence of Zina (Enforcement
of Hudood) Ordinance, 1979 in Crime No. 113 of 2001 of Police Station Mirwah. The
above mentioned bail applications are being heard by this Court vide order dated 4-3-
2003 passed by the Honourable Puisne Judge, therefore, applications are placed before
this Court at the principal seat for hearing at the earliest as the Criminal Bail Application
No.772 of 2001 filed by the co-accused Haji Bassar was decided by this Court while
sitting at High Court of Sindh Bench at Sukkur and the co-accused Haji Bassar was
granted bail by an order dated 28-12-2001.

The bail application on behalf of the applicants/accused were filed but same were
dismissed by the trial Court. The bail plea on behalf of the applicants were filed in this
Court but the said bail application was not pressed on merits and the trial Court was
directed to examine the complainant and two prosecution witnesses within a period of
four months vide order dated 18-7-2002 passed by my learned brother Syed Ali Aslam
Jaffri, J. In view of non-compliance of directions of this Court the bail application on
behalf of the applicants filed in the trial Court, which were dismissed by an order dated
27-11-2002, Hence. these applications have been filed.

It is contended by the learned counsel for the applicants that the case diaries of the trial
Court have been filed and it is clear that learned trial Court has not complied the
directions to examine the complainant and two prosecution witnesses within stipulated
period. It is further urged by the learned counsel for the applicants that the
applicants/accused persons are in continuous custody for more than two and half years
and delay . in disposal of the case is shocking and the directions of this Court has not
been complied with. Learned counsel for the applicants in support of his arguments has
relied upon 1997 SCMR 207, Muhammad Sadiq v. Muhammad Shafi and another 1973
SCMR 212, Sher Zaman v. Muhammad Azad and another 1978 SCMR 248, Manzoor
Khan v. Kamir and 4 others 1972 SCMR 207, 1994 PCr.LJ 12 and Ashok v. The State
1997 SCMR 436.

The prosecution case as narrated in the F.I.R. is reproduced hereinbelow in extenso:--

"Complaint is that I am Tailor Master, Anwar son of Haji Muhammad Hashim

Banbhan, resident of Weero had suspicion upon me and I have illicit terms with
the wife of Khadini son of Hashim Bahbhan, on that they were annoyed. On 11-8-
2001 my brother Amir Bux was cutting the grass near our houses that Khuda Bux
and Khalid both sons of Haji Gohar, Anwar and Nasrullah, both sons of
Muhammad Hashim Banbhan, resident of Village Weero came to land and
enquired from my brother Amir Bux regarding me and caused injuries to Amir
Bux, on that Amir Bux got registered such complaint at Police Station Mirwah.
After that I alongwith my wife Mst. Zameeran and Mst. Khalida wife of Shah
Nawaz Banbhan were cutting the grass for cattle from the land of Haji Shah
Muhammad Banbhan, and saw at about 12-00 noon, each Khuda Bux son of Haji
Ali Gohar armed with T.T. Pistol, (2) Khalid son of Haji Ali Gohar armed with
Lathi, (3) Anwar son of Haji Muhammad Hashim armed with Lathi, (4) Nasrullah
son of Haii Muhammad Hashim armed with hatchet, (5) Kadir Bux son of Haji
Saffar empty-handed came there and after pointing the arms said that be silent and
do not raise the cries. On that I due to fear remained silent, in my presence, above
all accused striped off clothes of my wife Mst. Zameeran and Mst. Khalida wife
of Shah Nawaz forcibly by -throwing their clothes away and caused Lathi blows
and dishonoured and disgraced them by making them walk at the time my brother
Abdul Haque and Muhammad Azam son of Haji Sobharo Lashari came there, at
seeing them all accused alongwith removed clothes of our ladies went towards
their houses, then I went to my Nekmards Sajjid Banbhan but he had gone to
Karachi, today he came here and I stated above facts to him, who advised me to
go to police station for lodging the F.I.R. Now I have come here and complain
that above accused with common intention after creating commotion on the basis
of above dispute, on the instigation of Haji Basar Banbhan striped off and tore
clothes of my wife Mst. Zameeran and Mst. Khalida forcibly, caused the blows
and have disgraced them and also made them walk."

On the other hand Mr. Ghulam Rasool Rind, learned counsel appearing on behalf of the
State has opposed the applications and submits . that according to the F.I.R. the
allegations levelled against them are serious in nature and the applications are liable to be
dismissed.

I have considered the contentions of the learned counsel for the respective parties and the
material placed on record and the case-law cited by the learned counsel for the applicants.

The applicants/accused persons are in custody since more than two and half years and
despite of directions of this Court, the trial Court had not been able to examine the
complainant and two prosecution witnesses within four months time.

In view of the dicta laid down in the above cited judgments, and in 1997 SCMR 436, the
Honourable Apex Court while deciding the case of Ashok v. The State, it has been held as
under:--

"Despite the positive direction of High Court, trial of the accused was not
concluded by the trial Court within three months and the Investigation Officer
was yet to be examined in the case accused not in any way responsible for delay
on the undertaking of the State Counsel that trial will be concluded within one
month, the petition converted into appeal and the trial Court was allowed one
month's time to conclude trial failing which on the expiry of one month's period
 accused would be deemed to have been granted bail and would be enlarged on
bail by the trial Court." .

The applicants/accused persons cannot be held responsible for delaying the trial. It is also
held by the Honourable Apex Court that freedom of the individual is precious right,
personal. liberty granted by the Court of competent jurisdiction should not be snatched
away from the accused unless it becomes necessary to deprive him of opportunity under
the law. The applicants/accused persons are in continuous custody for more than two and
half years and the trial Court had not recorded the evidence of three prosecution
witnesses and directions of this Court has not been complied with. As per case diaries
dated 4-7-2002 up to 4-3-2003, the applicants have not delayed the trial proceedings,
therefore, they cannot be made responsible for delay in conclusion of trial or at least
recording of evidence of three prosecution witnesses. The applicants/accused persons
cannot be detained for indefinite period. The F.I.R. of this case was lodged on 26-8-2001
at 13-30 hours whereas the date and time of incident is 11-8-2001 at 12-00 noon and
there is delay of 15 days in lodging of the F.I.R. At present other merit of the prosecution
case cannot be considered as the bail application on behalf of the applicants /accused was
not pressed and there was directions of this. Court to record the evidence of the
complainant and two prosecution witnesses by an order dated 18-7-2002, which has not
been complied with by the trial Court.

In view of the judgment relied upon by the learned counsel for the applicants, I am of the
view that the trial Court Did-delayed the disposal of the case which is shocking as
applicants/accused are in custody for more than two and half years.

I am of the view that the applicants/accused above named have made out a case for grant
of bail. Resultantly, bail is granted to the applicants subject to their furnishing surety in
the sum of Rs.2,00,000 (rupees two lacs only) each and P.R. Bond in the like amount to
the satisfaction of the trial Court.

The prosecution will be at liberty to file application for cancellation of bail in the trial
Court without referring to this Court if complainant and eye-witnesses bring positive
evidence for commission of offence against the applicants/accused.

H.B.T./A-457/K Order accordingly

2000 Y L R 2592

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD RAFIQ and others---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.24 of 1995, heard on 21st April, 2000.

Penal Code (XLV of 1860)---

----S.302(b) 34---Appreciation of evidence--Occurrence was an unwitnessed one---

Complainant did not inform the police about his missing son (deceased) for whole of the
night and he did so only on knowing that the deed body of his son was lying in the
field--Witnesses had mostly deposed that they had only seen all the accused sitting
together and their testimony did not advance the case of prosecution---Another witness
had deposed that he had heard one accused asking his co-accused to join him in killing
the deceased who was having illicit relations with his sister, but he neither informed the
deceased nor his father in this regard and his testimony could not be relied upon---
Conduct of the witnesses of extra judicial confession was most unnatural as they had not
got the accused snaking such confession arrested by the police---Said witnesses, even
otherwise, here neither influential persons nor they were in a position to get pardon for
the accused from the relations of the deceased--Recoveries effected in the case seemed to
have been planted on the accused---Accused were acquitted in circumstances.

Khurram Latif Khan for Appellants.

A. H. Masood for the State

Mirza Muhammad Rashid Ahmad Raza for the Complainant.

Date of hearing: 21st April, 2000

JUDGMENT

This order will dispose of Criminal Appeal No.24 o-f 1995 tiled by the appellant,
Criminal Revision No.438 of 1995 filed by the complainant against the acquittal of the
acquitted co-accused of the appellant, then there is Criminal Revision No.26 of 1995 tiled
by the complainant for the enhancement of the sentence against the appellant, then a
Criminal Revision No.278 of 1995 was also tiled by the State against the appellant for the
enhancement of sentence, directed against the judgment, dated 22-12-1994 passed by the
learned Additional Sessions Judge, Okara, whereby he convicted Muhammad Ishaque,
Muhammad Abbas and Muhammad Rafique appellants under section 302(b)/34, P.P.C.
and, sentenced them to undergo life imprisonment and all the remaining accused were
acquitted giving them benefit of doubt.

2. Brief facts of the case as narrated in the F.I.R. lodged by Sultan Ahmad complainant
are that on 17-9-1993 at about 9-15 R.m. he and his son Riaz Ahmad deceased were
present in their house, Riazabad Basti when Ijaz accused called out his son Riaz Ahmad
deceased. When Riaz Ahmad deceased did not turn up, till 9/10 a.m. next morning the
complainant and his son Muhammad Nawaz started searching for him. During the course
of search Syed Ghulam Mustafa Shah Gaddi Nasheen of Darbar Sakhi Shahbal Shah met
him on the way and disclosed that the dead body of his son Riaz Ahmad deceased was
lying in his land in Thatha Sayyadan. The complainant and his son Muhammad Nawaz
reached the spot and found the dead body lying on the bank of a 'Watt' of the field. The
matter was reported to police P.S. Gogera placing strong suspicion on the relatives of Ijaz
Ahmad accused, who had taken the deceased alongwith them on last night.
3. The motive behind this occurrence allegedly stated was that the deceased had illicit
relations with their girl Mst. Shehnaz.

4. Rai Zamir-ul-Haq (I.O.) after completing necessary formalities reached the spot
prepared the injury statement and inquest report Exh.P.K and Exh.P.L respectively. He
also prepared the site plan of place of dead body Exh.P.M. He after receipt of postmortem
report, took into possession the last worn clothes vide memo. Exh.PJ. He arrested
Ishaque, Abbas and Rafique accused. Muhammad Ishaque got recovered wristwatch P.1
and a cloth P.4. Similarly Muhammad Abbas also got recovered ring P.2 and Muhammad
Rafique accused got Softy Chappal P.3/1-2.

4-A. Prosecution in order to prove its case produced 13 witnesses in all. Thereafter
statements of the accused/appellants were recorded under section 342, Cr.P.C# in which
they pleaded not guilty and - claimed false implication.

5. Learned counsel for the appellants after having gone through the evidence ,recorded by
the learned trial Court submits that it was a case of no evidence, that the recovery of
articles which were allegedly effected on the pointation of the appellants were not
mentioned in the F.I.R., that Sultan Ahmad P.W.4 who was father of the deceased namely
Riaz Ahmad Patwari, had admitted that in his presence Ijaz Ahmad acquitted coaccused
did not take the deceased from his house. Learned counsel further submits that the two
witnesses of extra-judicial confession, Pir Murad Shah P.W.11 and Syed Ghulam Mustafa
Shah P.W.12 are not confidence inspiring: Had Muhammad Ishaque accused confessed
his guilt before P.W.12, his duty was to have informed the police or to call the police at
the place where Muhammad Ishaque had made extra-judicial confession. After leaving
the place where Muhammad Ishaque appellant had made the extra-judicial confession,
P.W.12 went to police station. Learned counsel for the appellants submits that the
recoveries of cloth (Safa), wristwatch, golden ring etc. have been planted on the
appellants. He submits that on such a weak type of evidence no conviction on a capital
charge can be maintained or awarded. He adds that no blood-stained earth was also taken
into possession from where the dead body 'was found.

6. On the other hand ,learned counsel for the State assisted by the learned counsel for the
complainant supported the judgment of the learned trial Court.

7. I have heard the learned counsel for the parties and have also gone through the
evidence recorded by the -trial Court. In the instant case there was no eye-witness and it
was an. unwitnessed occurrence. Sultan Ahmad P.W.4 who is complainant and father of
Riaz Ahmad Patwari had admitted in his cross-examination that Ijaz Ahmad acquitted co-
accused was a student of sixth class at the time of occurrence who had come to his house
to fetch Riaz Ahmad deceased but at that time he (P.W.4) was not present. For whole of
the night Riaz Ahmad Patwari, deceased did not return to his house but his father never
informed the police even in the morning he did not inform the police. He only informed
the police when Syed Ghulam Mustafa Shah told him that dead body of his son was lying
in his field. As far as statement of Muhammad Sadiq P.W.3 is concerned, he is cousin of
the deceased, his evidence has no weight because . he had only seen all the
accused/appellants together. As far as statement of P.W.7 Muhammad Iqbal is concerned,
his statement is most unnatural because according to him he had heard Muhammad
Ishaque appellant asking the co-accused Abbas and Muhammad Rafique to join him in
order to kill the deceased as he was having illicit relations with his sister. This witness
never informed either to Riaz Ahmad deceased or to his father Sultan Ahmad in this
regard so no reliance can be placed on his statement then there is statement of Ghulam
Muhammad P.W.8. He stated in his statement that he saw Bakhsha acquitted co-accused
with Ishaque, Abbas and Rafique accused with an unknown person, se his evidence does
not advance the case of the prosecution. Now comes the statement of Faiz Muhammad
P.W.9, he. has stated in hi: statement that he saw Ishaque, Abbas and Rafique accused
sitting together. It is of no use to the prosecution. Abbas Rafique and Ishaque were
arrested by Rai Zameer-ul-Haq P.W.13 on 11-10-1993 but according to Imam Ali P.W.2
that Ishaque accused was produced before the Police by Ghulam Mustafa Shah P.W. on
the day on which he had made an extra-judicial confession before P. W .11 and P. W .12.
These two facts are irreconcilable. Then there are statements of Pir Murad Shah and Syed
Ghulam Mustafa Shah P. Ws. who were witnesses of extra-judicial confession allegedly
made by Ishaque appellant. Their conduct is most unnaturali.e. why they did not take him
to the police or why they did not get him arrested when he had made extra judicial
confession. They even did not ask any person to inform the police in this regard. It is
strange enough that why Ishaque appellant would make extra judicial confession before
them when they were neither influential persons nor they were related to the deceased
and even they were not in a position to get pardon for Ishaque. Their conduct is most
unnatural and unconvincing and no reliance can be placed on their testimonies. It is a
settled law that in circumstantial evidence every link should be interlinked with each
other. When the links are found to be missing then case of the prosecution becomes
doubtful. In my considered opinion, prosecution has failed to prove its case. It seems that
all the recoveries were planted on the appellants because there was no mention of these
articles in the F.I.R. which have been shown to be got recovered from the appellants.
Sultan Ahmad complainant had also admitted that first, police in fact had shown him
these recovery articles and then he mentioned that these articles belong to deceased. No
value can be attached to his statement.

The upshot of the above discussion is that the prosecution has miserably failed to F prove
its case. This appeal is accepted and the judgment of the learned trial Court is set aside.
Appellants are on bail, they are discharged from their bail bonds.

N.H.Q./M-197/L Appeal accepted.

1993 P Cr. L J 41

[Lahore]

Before Sardar Muhammad Dogar, J

MUHAMMAD ARSHAD --- Petitioner

Versus

THE STATE---Respondent

Criminal Misc. No.1512/B of 1992, decided on 10th May, 1992.

Criminal Procedure Code (V of 1898)--

----S. 497---Penal Code (XLV of 1860)), 5.302/34---Bail, grant of---Injury ascribed to

accused was declared simple and the same had not contributed to death of the deceased
---Co-accused with similar allegation was on bail since long---Another co-accused who
had caused the fatal blow had been murdered after being released on bail---Accused, no
doubt, had absconded for more than three years, but now he was in jail since more than
twenty months and the trial had not concluded despite direction of High Court and was
likely to be delayed further---Accused was admitted to bail in circumstances.

NA. Butt for Petitioner.

Sh. Ehsan Ahmad for the State.

ORDER

The petitioner stands named as one of the four accused alleged to have committed the
murder of Alauddin on 26-10-1987. Muhammad Abdullah, who had motive to commit
the murder, had allegedly fired ineffective shot while Muhammad Ashfaq alias Mansha,
also named as accused, has given the fatal blow with Khaniar. The petitioner and his
brother Ahmad Subhan were alleged to have inflicted one Khaniar blow each on the left
thigh. Both the injuries were declared simple and were not opined to have contributed to
death.

2. Abdullah, Ashfaq and Subhan were arrested. Abdullah was allowed post-arrest bail by
the Sessions Court. The case was, thereafter, transferred to the Court of Judge, Special
Court for Speedy Trials. During the pendency of the trial before the Special Court,
Subhan accused was allowed bail by a Bench of this Court consisting of myself and Mr.
Justice Riaz Ahmad vide order passed on 23-9-1989. By virtue of a judgment of the
Supreme Court, the case was sent back for trial to the Sessions Court. Thereafter,
Muhammad Ashfaq was allowed bail by the Sessions Court on statutory period having
passed. The petitioner, after arrest, submitted an application before this Court for grant of
bail. The same was dismissed vide order passed on 21-1-1991. The main factor which
weighed for dismissal of the petition was that the petitioner had remained absconder for
three years and three months and was arrested only five months earlier. Thereafter, the
petitioner moved another petition (Criminal Miscellaneous No.4367/B of 1991). The
application was disposed of with a direction to the trial Judge to conclude the trial before
15-1-1992. However, the trial could not be concluded. The petitioner has approached this
Court afresh for release on bail.

3. Report was called for, from the trial Judge about the progress of the trial. He was also
directed to submit explanation for not having complied with the direction to conclude the
trial within forty-five days. Mr. Khalid Mian, Additional Sessions Judge, who was seized
of the case, had been transferred to Bahawalpur. On being directed he submitted report,
which presumably was written on 4-5-1992. In that, he expressed his inability to submit
explanation as record was not with him. He has reported that he was leaving charge on
that day, i.e. 4-5-1992, as he was proceeding on fifteen days ex-Pakistan leave. It is also
reported by him that he had applied for grant of long leave for ninety days w.e.f. 20th
instant.
4. According to the learned counsel for the petitioner, the trial is still hanging on. He has
stated that Sher Zaheer Ahmad, Additional Sessions Judge, who was seized of the trial,
has sent the file to the Sessions Judge for withdrawal of the case from his Court and the
matter stands fixed before the Sessions Judge on 15-5-1992.

5. Statements of some prosecution witnesses still remain to be recorded. As noted in the

earlier part, the only injury ascribed to the petitioner was declared simple and the same
had not contributed to death. Ahmad Subhan, his co-accused, against whom similar
allegation was levelled, is on bail since long. Muhammad Ashfaq, who had caused the
fatal blow, is reported to have been murdered after being released on bail. No doubt, the
petitioner had absconded for more than three years, but now he is in jail since more than
twenty months and the trial has not concluded in spite of direction by this Court, and is
likely to be delayed further. This petition is, therefore, allowed. The petitioner shall be
released on bail on furnishing bail bonds in the sum of Rs.25,000 with two sureties each
in the like amount to the satisfaction of A.C. Cantt. Lahore.

6. The office shall obtain report required to be submitted by Mr. Khalid Mian, Additional
Sessions Judge, and place the matter before this Court. The Lahore, may also be asked to
submit a report about the cause Sessions Judge, of delay after the direction by this Court,
after going through the file.

7. To come up on 31-5-1992.

N.H.O./M-615/L Bail granted.

1988 P Cr. L. J 2159

[Lahore]

Before Manzoor Hussain Sial, J

MUHAMMAD ALI--Petitioner

versus

THE STATE--Respondent

Criminal Miscellaneous No. 3535/13 of 1987, decided on 20th January, 1988.

Criminal Procedure Code (V of 1898)--

---S. 497--Penal Code (XLV of 1860), S.302/109--Bail, grant of-Neither name of accused
was mentioned in F.I.R. nor there was any reference in F.I.R. about prosecution witnesses
testifying allegations of accused's abetment in commission of offence--Trial of case
delayed for a period of more than 2 years--Accused neither a previous convict nor trial of
case had been delayed at his instance or on his behalf--No complaint about accused about
his misconduct from jail authorities since his imprisonment--Accused was allowed to be
released on bail in circumstances.

Kh. Tariq Masood for Petitioner.

Masood Sadiq Mirza for the State.

ORDER

Muhammad Ali petitioner stands involved in a case under section 302/109, P.P.C.
registered against him and his co-accused on 19-5-1985 at Police Station City Rahimyar
Khan. He has applied for his release on bail when his previous application had been
dismissed by me do 26-10-1985.

2. The allegation against the petitioner is that he accompanied Nisar Ahmad accused and
abetted him to fire pistol shot on Ijaz Anwar resulting in latter's death. The factum of his
abetting Nisar Ahmad accused was witnessed by Arshad and Shah Nawaz P.Ws.

3. Learned counsel for petitioner contended that petitioner's name is net mentioned in the
F.I.R, and he had been falsely implicated in the case. It is also submitted that even the
names of Arshad and Shah Nawaz P.Ws. are not mentioned in the F.I.R. He was arrested
on 31-5-1985 and the trial of the case has not yet started. The allegation that he was
involved in 27 cases and was a previous convict is wrong. He was involved in several
false cases but eventually acquitted. As regards his conduct in jail learned counsel
submitted that no complaint was received since June, 1987 from the Central Jail, Multan
where he is detained since then.

4. Learned counsel representing the State on instructions from Allah Bakhgh A.S.I. Police
Station City Rahimyar Khan has confirmed from the record that he is not a previous
convict and the cases in which he had been involved resulted in his acquittal except the
instant case and another case under section 13 of Ordinance XX of 1965 which are still
pending decision. He has also not been able to show that the trial of the instant case had
been delayed for over two years due to his conduct specially because the trial has not
even commenced so far.

5. I have considered the contentions raised by learned counsel for the parties and have
gone through the file. The petitioner was arrested and is detained in jail since 31-5-1985.
As per report submitted by the Sessions Judge, Rahimyar Khan, the trial of the case has
not so far commenced, for reasons mentioned therein. The petitioner is not a previous
convict nor trial of the case had been delayed at his instance or on his behalf. There is no
complaint about his misconduct from the jail authorities after June 1987. His name does
not find mention in the F.I.R. nor there is any reference about Muhammad Arshad and
Shah Nawaz P.Ws. in the F.I.R. testifying the factum of his abetment to Nisar Ahmad
co-accused for the commission of the offence.

6: For all the reasons given above sand in the circumstances of the instant case, he is
allowed to be released on bail provided, he furnishes bail bond in the sum of Rs.40,000
Rupees forty thousand only) with one surety in the like amount to the satisfaction of
A.C./ M.I.C., Rahimyar Khan.

H.B.T./M-549/L Bail granted.

1984 P Cr. L J 1888

[Lahore]

Before Kamal Mustafa Bokhari, J

ALLAH BAKHSH-Petitioner

Versus

THE STATE-Respondent

Criminal Miscellaneous No. 665-B of 1983, decided on 11th June, 1983

Criminal Procedure Code (V of 1898)-

--S. 497-Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10 & 11-
Bail, grant of-Petitioner, accused of committing Zina-bil-Jabr as punishable under
sections 10 & 11 of Offence of Zina Ordinance, behind bars for over 8 months-Person of
petitioner no longer required for further investigation-Trial delayed for no fault of
petitioner as challan against petitioner not filed in trial court as yet-Petitioner allowed
bail, in circumstances.

Muhammad Ramzan Khalid Malik for Petitioner.

Muhammad Khalid Alvi for the State.

Date of hearing: 11th June, 1983.

ORDER

Petitioner in this case is accused of an offence under sections 10 and 11 of Ordinance VII
of 1979. It is alleged that the committed Zina-bil-jabr with the prosecutrix in the
afternoon of 29-9-1982 when she was cutting grass in the field.

2. It has been argued that there is a delay of 20 hours in lodging the F. I. R. although the
Police Station was only two miles away from the spot, that the petitioner was arrested on
30-9-1982 and since then he is lodged in the judicial lockup without any challan being
filed in Court and that petitioner has been falsely implicated due to enmity arising out of
property dispute. It has also been submitted that prosecutrix was not medically examined
in this case. No result of Chemical Examiner relating to semen has been obtained. The
release of petitioner on bail has been opposed by learned counsel for the State. He has
submitted that a complete challan was filed with the Martial Law Authorities, on 31-1-
1983 and since then papers are lying there for a decision as to whether the trial is to be
made by a Summary Military Court or by the criminal Court concerned.

3. The person of petitioner is no longer required for further investigation. He is in custody

since 30-9-1982 and the trial has been delayed for no fault of the petitioner. In the
circumstances the petitioner A is allowed bail subject to his furnishing security in the sum
of Rs. 10,000 (Rupees ten thousand) with one surety in the like amount to the satisfaction
of Assistant Commissioner/Duty Magistrate, Lodhran.

M. Y. H. Bail granted.