' HASNAT AHMAD KHAN, Muhammad Ijaz, the petitioner, by submitting this application, has sought concession of post-arrest bail in .Case F.I.R. No,551 of 2007, dated 10-10-2007, registered with Police Station Cantonment, Gujranwala, in respect of an offence under section 302/34, P.P.C. '
2. Briefly put, the prosecution story as narrated in the F.I.R., lodged on the written statement of Mst.
Shahida Bibi (who was subsequently implicated as co-accused of the petitioner) is that Muhammad ijaz, the petitioner, and his co-accused Muhammad Arif, visited the complainant's place of abode at 2-30 a.m. On the night between 10th and 1 1 th of October, 2007, and started discussion with Muhammad Tariq deceased and his mother Rashida, the other deceased, regarding the bargain of a house. According to her, during the discussion, a dispute arose between them, as a result of which Muhammad Ijaz-petitioner and his co-accused, resorted to firing, as result of which. Muhammad Ijaz-petitioner and Muhammad Arif, co-accused, killed Muhammad Tariq and his mother Mst. Rashida Bibi by causing firearm injuries as well as sharp-edged injuries with daggers. The complainant further claimed that she was also injured at the hands of the accused in the said occurrence. As a result of the said F.I.R. The petitioner was arrested on 1st of October, 2007, and the crime weapon, i,e, pistol, was duly recovered from his possession on 5-11- 2007. At a later stage it transpired that Mst. Shahida Bibi-the complainant of the case-had illicit relations with Ijaz-petitioner and she was also involved in the double murder of her husband and mother-in-law. Consequently, on the statement of Mst. Bushra Bibi, the real sister of Tariq deceased, Mst. Shahida Bibi, the complainant of this case, was also implicated in this case.
3. In support of this petition learned counsel for the petitioner has contended that Mst. Shahida Bibi, the co-accused, has already been allowed bail by this Court vide order dated 1-6-2009, passed on Criminal Miscellaneous No,4956-B of 2009; that while granting bail to the said co-accused, it was observed by this Court that the early conclusion of the trial was not insight; that the petitioner has been languishing in jail as under-trial prisoner since 1-11-2007; that considering the fact that on the complaint filed by Mst. Shahida Bibi, the accused named therein have already been summoned by the learned trial Court to face the trial, therefore, the early conclusion of the trial is not possible; that in case the petitioner is not granted bail, he would rot in jail for an indefinite period; that due to the lodging of the cross-version by Mst. Shahida Bibi, the original complainant of this case, the case has become as that of further enquiry; that Mst. Bushra Kanwal, who subsequently has become the complainant of this case while appearing in the witness, box and responding to a question during her cross-examination, has made a conceding statement in favour of the petitioner, and on that account as well the petitioner's case has become as that of further enquiry, and that, in the peculiar circumstances of the case and on the basis of data available on the record, no Court is going to hang the petitioner at the end of the day. To shore up his contentions, learned counsel for the petitioner has relied upon Siraj Din v. Kala and another PLD 1964 SC 26, Muhammad Saleh v. The State PLD 1965 SC 366, Ghulam Muhammad and another v. The .State PLD 1961 (W.P.) Lah. 146, Riaz, alias Sarfraz v. The State 1977 PCr.LJ 493, Fateh Khan v. The State 2007 YLR 335, Nawab and another v. The State 1975 PCr.LJ 1270, and Mohabat v. The State 1975 PCr.LJ 882.
4. Conversely, learned A.P.-G. Has opposed this petition tooth and nail by submitting that the petitioner is the principal perpetrator of this case; that the petitioner is not only implicated in the State-case but, according to the private complaint filed by Mst. Shahida Bibi, co-accused, the petitioner is principal accused of this case and that the petitioner cannot be released on bail on the ground of grant of bail to his co-accused, who has been granted bail as a matter of right on the ground of delay in conclusion of the trial.
5. Heard. Record perused.
6. Admittedly in this case, two people were killed in a cruel and chilling manner. The occurrence was reported to the police by Mst. Shahida Bibi, wife of Tariq-deceased. Admittedly, she was inmate of the house where the occurrence took place. It is also an admitted fact that she had also received some injuries on her person during the occurrence, a fact which is duly reflected from the Medico-Legal Certificate, which is a part of. The record of this case. Therefore, her presence at the time of occurrence cannot be ruled out either. It is true that afterwards she was also implicated in this case as a co-accused of the petitioner, with whom, according to the prosecution, she had illicit relations. After stepping into the shoes of the original complainant, Mst. Bushra Kanwal produced some other witnesses as well before the Investigating Officer. Though in the complaint file by Mst.
Shahida Bibi, the original complainant of this case, the accused nominated therein have already been summoned to face the trial, yet the fact remains that, even according to the said complaint, the petitioner is the principal perpetrator of the offence.
7. The said Mst. Shahida Bibi, co-accused, has not exonerated the petitioner from the allegation levelled again him in the F.I.R., rather, she has re-affirmed the allegations levelled by her while lodging the private complaint. Even according to the cursory statements made by the eye- witnesses in the said complaint the petitioner is the main perpetrator of the offence. During the investigation he was found guilty of the alleged offence. The crime weapon, i,e, the pistol, was also recovered from the petitioner's possession. In short, prima facie, there is sufficient evidence on record to saddle the petitioner with the alleged crime. The trial in State case has already been concluded and the said case is at the arguments stage.
8. It is true that due to the filing of the complaint filed by Mst. Shahida Bibi, the co-accused of the petitioner, the decision in the State case has been delayed and naturally the same is likely to be decided along with the State-case, but the fact remains that the delay in conclusion of the trial has not been found to be unconscionable. Presently, the Criminal Procedure Code does not contain any provision giving a right of bail to accused, belonging to sterner sex, simply on the ground of a certain and fixed delay in conclusion of the trial.
9. Insofar as grant of bail to Mst. Shahida Bibi, co-accused, is concerned, admittedly her first application was dismissed after considering the merits and de-merits of the case in detail vide order dated 30-7-2008. However, she was granted bail as a matter of right in view of the relevant provisions of law due to the statutory delay in conclusion of the trial. Admittedly, no such right is available to the petitioner. Even otherwise the case of the petitioner is quite distinguishable from that of the said co-accused.
10. Insofar as part of the statement of Mst. Bushra Kanwal, P.W.8, is concerned, tentatively speaking, the' same cannot be considered as a ground for bail at this stage. Decision of bail application on the said' ground requires deeper appreciation of evidence. Even otherwise the said reply, which is reproduced hereinafter, was made while refuting a suggestion put to her:- "I did not state before the said S.-I/Investigating Officer in Exh.D.B. That accused Shahida Bibi was my. Khalazad and that she was married to my brother Tariq-deceased and that she is complainant of murder of my brother and that she had no connection with Ijaz accused nor she had any nexus with this occurrence and that she would remain complainant of this case and would pursue the same that I am fully satisfied that she was not accused of this case."
11. Coming to the case-law relied upon by the petitioner, I find that the same is distinguishable from the facts and circumstances of this case. Even otherwise, each criminal case has to be decided on its own facts, because facts of two criminal cases rarely coincide with each other.
12. For all that has been observed above, the petition in hand has been found to be merit-less, therefore, the same is dismissed.