PLJ 2011 Sh.C. (AJ&K) 80
Present: Iftikhar Hussain Butt, J.
MUHAMMAD IBRAR--Petitioner
versus
STATE and another--Respondents
Revision Petition No. 99 of 2009, decided on 26.11.2010.
Bail--
----Second bail application--Fresh ground--Held: Whenever a challan is presented or even the evidence of a single PW is recorded, the accused becomes entitled to file a bail application. [P. 83] A
Delay in Trial--
----Bail--The accused cannot be kept in detention for an indefinite period, delay in trial can be treated sufficient ground for granting bail. [P. 84] B
2005 PCr.LJ 147, rel.
Rule of consistency--
----Principle--When several accused are involved in a case they should all be treated alike and when one accused is released on bail against whom same offence is alleged and there is also similarity of evidence and circumstances of the case, the other is also entitled to the concession of bail. [Pp. 84 & 85] C
Raja Javaid Akhtar, Advocate for Petitioner.
Ch. Mahboob Elahi, Advocate for Complainant.
Mr. Fayyaz Haider Nawabi, Asst. A.G for State.
Date of hearing: 26.11.2010.
Order
The legality and proprietary of an order passed by District Criminal Court Kotli on 07.09.2009 has been called in question through the above captioned revision petition.
The necessary facts as disclosed in the F.I.R are that Muhammad Siddique, the complainant, lodged a written F.I.R on 27.08.2002 at 10:00 p.m. at Police Station Khuiratta alleging therein that on the same day at about 6:30 p.m., the accused Muhammad Younis along with other accused persons started construction on the disputed land pertaining to Survey No. 654 situated in village Nurma district Kotli. The complainant along with other deceased persons and injured P.Ws forbade them thereupon the accused person along with some unknown persons armed with lethal weapons launched an attack upon them in furtherance of their common intention. Resultantly, Zafar Hussain, Muhammad Saeed and Gulraiz were done to death whereas other persons were severely injured by remaining accused persons (Not before me). The instant case pertains to Ibrar-accused who has been alleged to cause injuries with a lethal weapon to Ghulam Rasool who got severely injured. After necessary investigation fourteen accused persons including Ibrar Ahmed were sent to face trial before District Criminal Court Kotli. Nine accused were released under Section 169, Cr.P.C. while two other accused-persons who were found innocent were left at the discretion of the trial Court.
The petitioner filed a pre-arrest bail application which was refused on 15.10.2002. After arrest, he presented another bail petition before the trial Court which was dismissed vide order dated 27.01.2003. He challenged the aforesaid order before Shariat Court but his revision petition was also dismissed. The petitioner filed an appeal before the Apex Court but the concession of bail was declined vide order dated 27.4.2005. After recording of the evidence of Muhammad Bashir, Parvaiz and Shabir Ahmed P.Ws, the petitioner presented another, bail application before the trial Court which was also rejected. The petitioner approached this Court on 29.02.2008 but the revision petition was again dismissed by Justice Sardar Muhammad Nawaz Khan, acting Chief Justice as he then was, vide order dated 30.08.2008.
After recording of some prosecution evidence, the petitioner once again filed a bail petition before District Criminal Court on 30.08.2009 but concession of bail was refused vide order dated 07.09.2009. The aforesaid order of District Criminal Court has been challenged through the instant revision petition which is the subject matter of this order.
In support of the revision petition, Raja Javaid Akhtar Advocate, the learned Counsel zealously argued that after grant of bail only five accused persons were facing trial, out of them two accused persons have absconded. Arif accused has been released on bail, on medical ground and the Apex Court has also granted bail to Muhammad Javaid accused vide its judgment dated 22.07.2010. Hence, Muhammad Ibrar is only accused who is detained in the Jail for the last eight years. The learned Counsel pointed out that Muhammad Javaid accused was attributed to do away with the life of Muhammad Saeed deceased by firing a shot and also launching an attack upon the complainant party alongwith other accused-persons in furtherance of their common intention but Muhammad Javaid has been released on bail by the Apex Court but the District Criminal Court fell in grave error while refusing bail to the petitioner who has been attributed to launch only a murderous attack upon Ghulam Rasool injured along with allegation of launching a murderous attack upon the other accused persons in furtherance of their common intention and he has not been attributed to cause any injury to any of the deceased. The learned Counsel went on to argue that the question of vicarious liability shall be looked into by the trial Court therefore, the case of petitioner remained only up to the extent of causing injury to Ghulam Rasool. The learned counsel emphasized that the maximum sentence for making an attempt to commit qatl-i-amd has been provided imprisonment up to ten years alongwith fine and Arsh whereas according to the learned counsel, the petitioner is behind the bars for the last eight years i.e. 15.10.2002 and if for instance the accused would have been punished up to ten years, he would have been released under the Jail Manual till now. The learned Counsel stressed upon the point that Muhammad Siddique complainant has not appeared before the trial Court to get his statement recorded and the prosecution has been ordered to produce him at his own but in-vain, similarly, the evidence of eight other prosecution witnesses is yet to be recorded which will take a pretty long time. The trial is unnecessarily being prolonged and the petitioner is being kept in detention for an indefinite period thus, the delay may be treated as a primary ground for granting bail to the petitioner as it has been held a valid ground by the Apex Court in Javaid Ahmed's case, submitted by the learned Counsel. The learned Counsel further agitated that Muhammad Ibrar has been attributed to cause an injury to Ghulam Rasool but the Said Ghulam Rasool has not been cited as P.W in calendar of Challan and has yet not appeared before the trial Court. The learned Counsel finally submitted that keeping in view the nature of offence, the period of detention and following the rule of consistency, the accused-petitioner may be released on bail. In support of his contentions the learned Counsel referred to me the following authorities:--
1. 2002 MLD 1416 Karachi
2. 2005 P.Cr.LJ 147 Karachi
3. An unreported judgment of Supreme Court of AJ&K titled Muhammad Javaid Vrs. The State & other [Criminal Appeal No. 1/2010 (Rkt)] decided on 22. 07.2010.
Ch. Mahboob Elahi, the learned Counsel for the complainant-respondent controverted the arguments raised by the learned Counsel for the petitioner and submitted that during the occurrence three persons were killed whereas eight were severely injured but many accused persons were released by the Police under Section 169, Cr.P.C. The learned Counsel argued that the petitioner has withheld the real story of occurrence in the bail petition. The learned Counsel further contended that a Kalashnikov has been recovered on the pointation of the accused petitioner, empties have also been taken into possession from the place of occurrence and he is fully involved in the case along with principal-accused persons. The learned Counsel conceded the argument advanced by the learned Counsel for the petitioner to the extent of an offence under Section 324, APC but according to him, the accused petitioner is also involved in the commission of murder of three persons. The learned Counsel pressed into service the submission that the bail was declined to accused-petitioner by this Court vide order dated 30.8.2008 and thereafter only the evidence of Doctor P.W has been recorded; therefore, no fresh ground is available to the accused-petitioner for grant of bail thus, the bail petition may be dismissed. In support of his arguments the learned Counsel placed reliance upon PLD 1987 S.C. (AJ&K) 27.
Fayyaz Haider Nawabi, the learned Asst. A.G appearing on behalf of the State fully owned and supported the arguments raised by the learned Counsel for the complainant.
I have given my due consideration to the arguments addressed at the Bar. At the very outset, it will be relevant to note that in earlier round of litigation, the petitioner has been refused the concession of bail up to the Apex Court by once and twice by this Court; therefore, I refrain to comment upon the merits of the case and about its changing situation after recording of the evidence of the prosecution because it may prejudice the case of either party.
Firstly, I choose to resolve the objection raised by the learned Counsel for the complainant that fresh ground is not available to the petitioner to file a bail petition. It is by now admitted position of law that whenever a Challan is presented or even the evidence of a single P.W is recorded, the accused becomes entitled to file a bail application; therefore, the instant petition is competent on the fresh ground.
It is necessary to mention here that new situation has emerged in the case after the latest dictum of the Apex Court in Muhammad Javaid's case (decided on 22.7.2010) cited by the learned Counsel for the petitioner, wherein Muhammad Javaid has been released on bail, who has been attributed to do away with the life of one of the deceased and who is also facing trial in case of vicarious liability alongwith other accused-persons including the petitioner, whereas the accused-petitioner has been alleged to make an attempt of Qatl-i-Amd on Ghulam Rasool and has been also implicated in the case of vicarious liability alongwith co-accused. It is also admitted position on the record that sentence of attempt to Qatl-i-Amd has been provided up to 10 years alongwith fine and Arsh and the accused-petitioner is behind the bars for the last (8) years and the evidence of 10 P.Ws is yet to be recorded. The complainant is not appearing before the trial Court to get his statement recorded for a pretty longtime.
I am cognizant of the fact that delay in trial per se is no ground for grant of bail but at the same time the Courts have held that criminal trial is not unnecessarily protected and the accused cannot be kept in detention for an indefinite period; therefore, in the light of peculiar facts and special circumstances of the present case, delay in trial can be treated sufficient ground for granting bail. The foresaid view finds support from a case titled as Gulbaig alias Nangi V. The State (2005 P.Cr.LJ 147), wherein the accused was continuously detained in a murder case for a period of more than 4 years and trial was not concluded; therefore, the accused was released on bail.
In Muhammad Javaid's case the Apex Court while dealing with the principle of delay in trial opined in the following manner in Para 3 of the judgment:
"Although delay in completion of prosecution's case is not, in itself, a ground for release of the accused but the fact of the matter still remains that the Courts have to get the fundamental rights of all the citizens protected even in criminal cases and nobody can be kept behind bars when the Court comes to the conclusion that the delay is inordinate, which also means unreasonable in the present case as statement of the complainant has not been recorded for the last about 8 years and nobody, despite information and being present in the Court at Mirpur, has appeared in the Court today. We propose to allow this application."
The contention of the learned Counsel that following the rule of consistency, the petitioner is also entitled to be released on bail appears to be well founded and requires serious consideration. It is by now an enriched principle of criminal jurisprudence that when several accused are involved in a case they should all be treated alike and when one accused is released on bail against whom same offence is alleged and there is also similarity of evidence and circumstances of the case the other is also entitled to the, concession of bail whereas in the instant case the petitioner is involved in a case of lesser gravity as compared to Muhammad Javaid's case; therefore, following the principle, of consistency, the accused-petitioner is also entitled to be released on bail.
As far as Karamat Hussain's case (PLD 1987 SC (AJ&K) 27) referred to by the learned Counsel for the complainant is concerned, is not applicable to the facts of the instant case; therefore, does not require any analytical survey.
In this view of the matter, the trial Court failed to exercise its discretion in a legal and judicious manner and also failed to apply its judicial mind to follow the dictum of Apex Court recorded in Muhammad Javaid's case; therefore, the impugned order is not sustainable.
Pursuant to above discussion, I accept this revision petition, set-aside the impugned order dated 7.9.2009 and allow bail to the accused-petitioner provided he furnishes bail bond in sum of Rs. 20,00,000/- (Twenty lac) with two sureties in the like amount to the satisfaction of trial Court. If the needful is done, he shall be released forthwith provided not required in any other case or offence.
(M.S.A.) Revision accepted.
Present: Iftikhar Hussain Butt, J.
MUHAMMAD IBRAR--Petitioner
versus
STATE and another--Respondents
Revision Petition No. 99 of 2009, decided on 26.11.2010.
Bail--
----Second bail application--Fresh ground--Held: Whenever a challan is presented or even the evidence of a single PW is recorded, the accused becomes entitled to file a bail application. [P. 83] A
Delay in Trial--
----Bail--The accused cannot be kept in detention for an indefinite period, delay in trial can be treated sufficient ground for granting bail. [P. 84] B
2005 PCr.LJ 147, rel.
Rule of consistency--
----Principle--When several accused are involved in a case they should all be treated alike and when one accused is released on bail against whom same offence is alleged and there is also similarity of evidence and circumstances of the case, the other is also entitled to the concession of bail. [Pp. 84 & 85] C
Raja Javaid Akhtar, Advocate for Petitioner.
Ch. Mahboob Elahi, Advocate for Complainant.
Mr. Fayyaz Haider Nawabi, Asst. A.G for State.
Date of hearing: 26.11.2010.
Order
The legality and proprietary of an order passed by District Criminal Court Kotli on 07.09.2009 has been called in question through the above captioned revision petition.
The necessary facts as disclosed in the F.I.R are that Muhammad Siddique, the complainant, lodged a written F.I.R on 27.08.2002 at 10:00 p.m. at Police Station Khuiratta alleging therein that on the same day at about 6:30 p.m., the accused Muhammad Younis along with other accused persons started construction on the disputed land pertaining to Survey No. 654 situated in village Nurma district Kotli. The complainant along with other deceased persons and injured P.Ws forbade them thereupon the accused person along with some unknown persons armed with lethal weapons launched an attack upon them in furtherance of their common intention. Resultantly, Zafar Hussain, Muhammad Saeed and Gulraiz were done to death whereas other persons were severely injured by remaining accused persons (Not before me). The instant case pertains to Ibrar-accused who has been alleged to cause injuries with a lethal weapon to Ghulam Rasool who got severely injured. After necessary investigation fourteen accused persons including Ibrar Ahmed were sent to face trial before District Criminal Court Kotli. Nine accused were released under Section 169, Cr.P.C. while two other accused-persons who were found innocent were left at the discretion of the trial Court.
The petitioner filed a pre-arrest bail application which was refused on 15.10.2002. After arrest, he presented another bail petition before the trial Court which was dismissed vide order dated 27.01.2003. He challenged the aforesaid order before Shariat Court but his revision petition was also dismissed. The petitioner filed an appeal before the Apex Court but the concession of bail was declined vide order dated 27.4.2005. After recording of the evidence of Muhammad Bashir, Parvaiz and Shabir Ahmed P.Ws, the petitioner presented another, bail application before the trial Court which was also rejected. The petitioner approached this Court on 29.02.2008 but the revision petition was again dismissed by Justice Sardar Muhammad Nawaz Khan, acting Chief Justice as he then was, vide order dated 30.08.2008.
After recording of some prosecution evidence, the petitioner once again filed a bail petition before District Criminal Court on 30.08.2009 but concession of bail was refused vide order dated 07.09.2009. The aforesaid order of District Criminal Court has been challenged through the instant revision petition which is the subject matter of this order.
In support of the revision petition, Raja Javaid Akhtar Advocate, the learned Counsel zealously argued that after grant of bail only five accused persons were facing trial, out of them two accused persons have absconded. Arif accused has been released on bail, on medical ground and the Apex Court has also granted bail to Muhammad Javaid accused vide its judgment dated 22.07.2010. Hence, Muhammad Ibrar is only accused who is detained in the Jail for the last eight years. The learned Counsel pointed out that Muhammad Javaid accused was attributed to do away with the life of Muhammad Saeed deceased by firing a shot and also launching an attack upon the complainant party alongwith other accused-persons in furtherance of their common intention but Muhammad Javaid has been released on bail by the Apex Court but the District Criminal Court fell in grave error while refusing bail to the petitioner who has been attributed to launch only a murderous attack upon Ghulam Rasool injured along with allegation of launching a murderous attack upon the other accused persons in furtherance of their common intention and he has not been attributed to cause any injury to any of the deceased. The learned Counsel went on to argue that the question of vicarious liability shall be looked into by the trial Court therefore, the case of petitioner remained only up to the extent of causing injury to Ghulam Rasool. The learned counsel emphasized that the maximum sentence for making an attempt to commit qatl-i-amd has been provided imprisonment up to ten years alongwith fine and Arsh whereas according to the learned counsel, the petitioner is behind the bars for the last eight years i.e. 15.10.2002 and if for instance the accused would have been punished up to ten years, he would have been released under the Jail Manual till now. The learned Counsel stressed upon the point that Muhammad Siddique complainant has not appeared before the trial Court to get his statement recorded and the prosecution has been ordered to produce him at his own but in-vain, similarly, the evidence of eight other prosecution witnesses is yet to be recorded which will take a pretty long time. The trial is unnecessarily being prolonged and the petitioner is being kept in detention for an indefinite period thus, the delay may be treated as a primary ground for granting bail to the petitioner as it has been held a valid ground by the Apex Court in Javaid Ahmed's case, submitted by the learned Counsel. The learned Counsel further agitated that Muhammad Ibrar has been attributed to cause an injury to Ghulam Rasool but the Said Ghulam Rasool has not been cited as P.W in calendar of Challan and has yet not appeared before the trial Court. The learned Counsel finally submitted that keeping in view the nature of offence, the period of detention and following the rule of consistency, the accused-petitioner may be released on bail. In support of his contentions the learned Counsel referred to me the following authorities:--
1. 2002 MLD 1416 Karachi
2. 2005 P.Cr.LJ 147 Karachi
3. An unreported judgment of Supreme Court of AJ&K titled Muhammad Javaid Vrs. The State & other [Criminal Appeal No. 1/2010 (Rkt)] decided on 22. 07.2010.
Ch. Mahboob Elahi, the learned Counsel for the complainant-respondent controverted the arguments raised by the learned Counsel for the petitioner and submitted that during the occurrence three persons were killed whereas eight were severely injured but many accused persons were released by the Police under Section 169, Cr.P.C. The learned Counsel argued that the petitioner has withheld the real story of occurrence in the bail petition. The learned Counsel further contended that a Kalashnikov has been recovered on the pointation of the accused petitioner, empties have also been taken into possession from the place of occurrence and he is fully involved in the case along with principal-accused persons. The learned Counsel conceded the argument advanced by the learned Counsel for the petitioner to the extent of an offence under Section 324, APC but according to him, the accused petitioner is also involved in the commission of murder of three persons. The learned Counsel pressed into service the submission that the bail was declined to accused-petitioner by this Court vide order dated 30.8.2008 and thereafter only the evidence of Doctor P.W has been recorded; therefore, no fresh ground is available to the accused-petitioner for grant of bail thus, the bail petition may be dismissed. In support of his arguments the learned Counsel placed reliance upon PLD 1987 S.C. (AJ&K) 27.
Fayyaz Haider Nawabi, the learned Asst. A.G appearing on behalf of the State fully owned and supported the arguments raised by the learned Counsel for the complainant.
I have given my due consideration to the arguments addressed at the Bar. At the very outset, it will be relevant to note that in earlier round of litigation, the petitioner has been refused the concession of bail up to the Apex Court by once and twice by this Court; therefore, I refrain to comment upon the merits of the case and about its changing situation after recording of the evidence of the prosecution because it may prejudice the case of either party.
Firstly, I choose to resolve the objection raised by the learned Counsel for the complainant that fresh ground is not available to the petitioner to file a bail petition. It is by now admitted position of law that whenever a Challan is presented or even the evidence of a single P.W is recorded, the accused becomes entitled to file a bail application; therefore, the instant petition is competent on the fresh ground.
It is necessary to mention here that new situation has emerged in the case after the latest dictum of the Apex Court in Muhammad Javaid's case (decided on 22.7.2010) cited by the learned Counsel for the petitioner, wherein Muhammad Javaid has been released on bail, who has been attributed to do away with the life of one of the deceased and who is also facing trial in case of vicarious liability alongwith other accused-persons including the petitioner, whereas the accused-petitioner has been alleged to make an attempt of Qatl-i-Amd on Ghulam Rasool and has been also implicated in the case of vicarious liability alongwith co-accused. It is also admitted position on the record that sentence of attempt to Qatl-i-Amd has been provided up to 10 years alongwith fine and Arsh and the accused-petitioner is behind the bars for the last (8) years and the evidence of 10 P.Ws is yet to be recorded. The complainant is not appearing before the trial Court to get his statement recorded for a pretty longtime.
I am cognizant of the fact that delay in trial per se is no ground for grant of bail but at the same time the Courts have held that criminal trial is not unnecessarily protected and the accused cannot be kept in detention for an indefinite period; therefore, in the light of peculiar facts and special circumstances of the present case, delay in trial can be treated sufficient ground for granting bail. The foresaid view finds support from a case titled as Gulbaig alias Nangi V. The State (2005 P.Cr.LJ 147), wherein the accused was continuously detained in a murder case for a period of more than 4 years and trial was not concluded; therefore, the accused was released on bail.
In Muhammad Javaid's case the Apex Court while dealing with the principle of delay in trial opined in the following manner in Para 3 of the judgment:
"Although delay in completion of prosecution's case is not, in itself, a ground for release of the accused but the fact of the matter still remains that the Courts have to get the fundamental rights of all the citizens protected even in criminal cases and nobody can be kept behind bars when the Court comes to the conclusion that the delay is inordinate, which also means unreasonable in the present case as statement of the complainant has not been recorded for the last about 8 years and nobody, despite information and being present in the Court at Mirpur, has appeared in the Court today. We propose to allow this application."
The contention of the learned Counsel that following the rule of consistency, the petitioner is also entitled to be released on bail appears to be well founded and requires serious consideration. It is by now an enriched principle of criminal jurisprudence that when several accused are involved in a case they should all be treated alike and when one accused is released on bail against whom same offence is alleged and there is also similarity of evidence and circumstances of the case the other is also entitled to the, concession of bail whereas in the instant case the petitioner is involved in a case of lesser gravity as compared to Muhammad Javaid's case; therefore, following the principle, of consistency, the accused-petitioner is also entitled to be released on bail.
As far as Karamat Hussain's case (PLD 1987 SC (AJ&K) 27) referred to by the learned Counsel for the complainant is concerned, is not applicable to the facts of the instant case; therefore, does not require any analytical survey.
In this view of the matter, the trial Court failed to exercise its discretion in a legal and judicious manner and also failed to apply its judicial mind to follow the dictum of Apex Court recorded in Muhammad Javaid's case; therefore, the impugned order is not sustainable.
Pursuant to above discussion, I accept this revision petition, set-aside the impugned order dated 7.9.2009 and allow bail to the accused-petitioner provided he furnishes bail bond in sum of Rs. 20,00,000/- (Twenty lac) with two sureties in the like amount to the satisfaction of trial Court. If the needful is done, he shall be released forthwith provided not required in any other case or offence.
(M.S.A.) Revision accepted.
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