' MANZOOR AHMAD MALIK, J.---Abdul Aziz and Nazar Hussain petitioners, seek bail after arrest in case F.I.R. No,357 of 2009 dated 6-7-2009 offence under sections 302, 109, 148 and 149, P.P.C.
Registered at Police Station Kunjah, District Gujrat. Precisely allegation against the petitioners is that at their instance their co-accused committed murder of brother of the complainant.
2. Learned counsel for the petitioners, in support of this petition, contends that the allegation against the petitioners is of abetment only and even the witnesses of abetment are not named in the F.I.R.; that the petitioners were initially allowed bail by the learned trial court vide order dated 11- 8-2009, however, subsequently on application of the complainant the said order was recalled on 16-12-2009 and the petitioners were arrested in the case. Learned counsel further contends that the main ground which weighed with the learned Additional Sessions Judge is that a criminal case vide F.I.R. No,594 of 2009 under section 506, P.P.C. Dated 14-10-2009 has been registered at Police Station Kunjah, District Gujrat against the petitioners after their release on bail; contends the petitioners have been allowed bail after arrest in that case which became basis for cancellation of their bail, therefore, when the petitioners have been allowed bail in that case, they are also entitled to the concession of bail in the case in which they were earlier allowed bail. Further contends that to the petitioners cannot be cancelled on the basis of the registration of a criminal case. In support of his submissions, learned counsel placed reliance on "Lal Khan v. Ali Khan and another" (PLD 1976 Karachi 1165).
3. Learned Deputy Prosecutor General assisted by learned counsel for the complainant opposes this bail petition on the grounds that the petitioners are nominated in the F.I.R. With specific role of abetment; that the charge has been framed against the petitioners and prosecution evidence is being recorded, therefore, at this stage it is not appropriate to allow bail to the petitioners.
4. I have heard learned counsel for both the sides. In this case, initially the petitioners were allowed bail after arrest vide order dated 11-8-2009 by the learned Additional Sessions Judge, which order was subsequently recalled vide order dated 16-12-2009 on the application of the complainant alleging therein that a criminal case stood registered against the petitioners and they had misused the concession of bail. The allegation against the petitioners is of abetment only and it has been held by the learned Additional Sessions Judge while allowing bail to the petitioners that their case needs further inquiry. Mere registration of a criminal case against the accused, who has been allowed bail on merits is no ground for cancellation of bail, Moreover the petitioners have been allowed bail in that case which became basis for the cancellation of bail. In the case titled "Lal Khan v. Ali Khan and another" (PLD 1976 Karachi 1165) it was held at page 1172 as under:-- "A mere entry in the roznamcha or filing a report by a police officer for maintenance of peace at the instance of one party or even a witness, would not serve the purpose of supplying a reasonable and sufficient ground for cancelling and interfering with the bail granted by a Court of law. If such entries and/or reports be accepted as grounds for cancelling the bail by themselves, this would tantamount to giving a handle to the parties or to the police to undo what a superior Courts of law may have done in the matter of bail. It is, therefore, hazardous to rely on such reports without actual proof of these facts in Court, which in the present case is totally lacking."
5. As far as commencement of trial is concerned, it is now, well-settled principle of law that the accused can be allowed bail at any stage and mere commencement of trial is no bar to enlarge the accused on bail, if he is otherwise entitled to the same. While holding so, I am guided by the principle of law laid down by the Hon'ble Supreme Court of Pakistan in the case titled "Muhammad Ismail versus Muhammad Rafique and another" (PLD 1989 SC 585) wherein at page 588 it has been enunciated as under:-- "It is well-known practice of the superior Courts of Pakistan that when a murder case is fixed for hearing ordinarily the bail applications are not decided on merits and the matter is often left to the discretion of the trial Judge. The observation of the learned Judge in the High Court with regard to prejudice, with respect, it is pointed out, would not be correct; because, the principle underlying the above-stated practice is directly relatable to the "question of prejudice."
' However, the above-stated position notwithstanding, after hearing the learned counsel we feel that this appeal merits to be dismissed, Firstly, if the merit points involved herein are determined, the very practice relied upon by the learned counsel will go against the appellant. The trial is to commence within a fortnight; hence cancellation of bail at this stage would not be proper. But in the circumstances of this case there is a more vital point on account of which this appeal merits to be dismissed.
' It appears from the tenor of the impugned judgment of the High 'Court that the respondent's case was treated as one falling under subsection (2) of section 497, Cr.P.C. That being so, the Court had no option but to release the accused on bail. The subsection reads as follows:-
(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed (a non-bailable offence), but that there are sufficient grounds for further inquiry, into his guilt, the accused shall pending such inquiry, be released on bail, or at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.
' It is apparent that when the Court finds that the two essential conditions contained in section 497(2), Cr.P.C. Are satisfied the accused shall become entitled as of right to bail. In the impugned order, the learned Judge, it seems, without saying so in so many words, felt that the two conditions existed in this case-(a), that "there are not reasonable grounds for believing that the accused has committed (a) non-bailable offence, (b), that there are sufficient grounds for further inquiry into his guilt." Accordingly the accused had become entitled to be released on bail.
' The question then arises; whether, subsection (2) of section 497, Cr.P.C. Would have operation notwithstanding the aforesaid practice of this Court. Much discussion is not necessary in this behalf. When an accused person becomes entitled as of right to bail under subsection (2) of section 497, Cr.P.C. The same cannot be withheld on the ground of practice; because, the latter is relatable to exercise of discretion while the former is relatable C to the exercise and grant of right."
6. For the foregoing, this petition is allowed and the petitioners are ID admitted to bail after arrest subject to their furnishing bail bonds in the sum of Rs, 1,00,000 (rupees one. Lac only) each with one surety each in the like amount to the satisfaction of learned trial Court. However, the learned trial Court is directed to make all possible efforts for conclusion of the trial of this case positively within a period of four months from the receipt of order of this Court.