SYED AKHLAQ AHMED, J. - Iftikhar Hussain/petitioner/accused seeks his post-arrest bail in case F.I.R.
No. 249; dated 30.9.2008, gender Sections 337-D/337- F(v), 337-F(i)/324/148/149, P.P.C. Registered at Police Station Jatli, District Rawalpindi.
2. Prosecution case is that on 30.9.2008 at 03:00 p.m., Lai Hussain son of Kala Khan resident of Dhon cursed Irfan son of Shan Khan and Iftikhar son of Mulazim Hussain for uprooting the crop. On his restraining, they both threatened to teach him a lesson today. At about 04:00 p.m., when Ch. Lai Hussain son of Ch. Sarfraz/complainant was sitting in the house Of his maternal, nephew Muhammad. Ashraf son of Ghulam Hussain, there was a noise and voice of abusing in the Gali. Oh this, he alongwith Muhammad Ashraf went outside and saw (1) Lai Hussain son of Kala Khan (2)
Gharan Bi wife of Allah Ditta (3) Mst. Arbun Nisa daughter of Ghulam Akbar and Umar Khayam son of Muhammad Ashraf residents of the village were coming from in front of the house of Mulazim Hussain towards the village. Meanwhile (1) Mulazim Hussain armed with 12 bore gun, (2) Shan Khan armed with pistol 30 bore (3) Irfan Khan armed with pistol 30 bore (4) Mudassar armed with pistol 30 bore (5) Iftikhar Hussain armed with Kalashnikov (petitioner) (6) Asad armed with soti (7) Aamir armed with soti and (8) Shah Nawaz armed with hatchet, in furtherance of their common intention, came out from the house of Mulazim Hussain while raising lalkaras and attacked. Upon them.
Iftikhar fired a direct shot from his Kalashnikov upon Mst. Gharan Bi which hit on the right side of her chest. After becoming injured, she fell down. Mulazim Hussain fired a direct shot from his pistol upon Mst. Arbun Nisa which hit on her back beneath the left shoulder. After becoming injured, she fell down. Mulazim Hussain fired a direct shot from his gun 12 bore upon Umar Khayarn which went through his nose. After becoming injured he also fell down. Shan Khan and others, eight in number, then belaboured the fallen injured as well as Lai Hussain. On the hue and cry (1) Muhammad Yousaf son of Ghulam Hussain (2) Muhammad. Ayub son of Ghulam Hussain (3) Muhammad Javed son of Ghulam Akbar residents of the village alongwith other male and female of the locality came at the spot. On this, Mulazim Hussain and others ran away while brandishing their arms and firing.
Motive of the occurrence is that on 29.9.2008, Lai Hussain son of Kala Khan had complained Iftikhar, Irfan and others about uprooting of crop and they took ill of it. Even today the accused uprooted the crop and due to. The said grievance, Iftikhar and others have committed murderous assault upon Mst. Gharan Bi, Mst. Arbun Nisa, Umar Khayarn and Lai Hussain.
3. Learned counsel for the petitioner contends that the petitioner filed Criminal Miscellaneous No. 681- B/2009 in the High Court for bail after arrest of the petitioner which was dismissed as withdrawn on 15.7.2009. However, direction was issued to the Trial Court to conclude the trial before the end of the year 2009 but the direction of the High Court, which was mandatory in nature, has not been complied with by the prosecution/Court till todate. The delay in the conclusion of trial is not attributable to the petitioner. Hence the petitioner/has become entitled to the concession of bail on this ground alone. Co-accused Mulazim Hussain who was attributed fire-arm injury on Umar Khayarn has been allowed bail after arrest by this Court vide order dated 2.6.2009. This being so, the petitioner has also become entitled to the concession of bail on the principle of rule of consistency. Police though collected the empty of Kalashnikov from the spot yet it has not been sent to the Forensic Science Laboratory for matching.. Even the Kalashnikov has not been sent to the Forensic Science Laboratory for comparison. The petitioner is behind the bar since the time of his arrest i.e. 15.10.2008. He is not a'1 previous convict. The petitioner cannot be confirmed in jail as of punishment, ft is, therefore, prayed that the petitioner may be admitted to post arrest bail.
4. On the other hand, D.D.P.P. On behalf of the State assisted by the learned counsel for the complainant strongly opposed this bail application.
5. Arguments heard. Record perused.
6. Admittedly the petitioner is named in the F.I.R. With specific role. Version of the F.I.R. Is supported from the statements of the PWs. It is further corroborated from the M.L.R. Of the injured Mst. Gharan and the recovery of Kalashnikov from the petitioner. Empty of Kalashnikov has also been recovered from the spot but it has not been sent for matching: In this case, the petitioner alongwith coaccused Irfan, in the first instance at 03:00 p.m. Threatened Lai Hussain son of Kala Khan of dire consequences and then they again came after full preparation and armed at 4 p.m. And implemented the given threat by firing direct shot from his Kalashnikov upon the chest of the innocent lady Mst. Gharan belonging to the complainant side. After the occurrence, the petitioner also became fugitive from law for about 15 days and was arrested on 15.18.2008 during raid conducted by the police. The case of the petitioner is quite distinguishable from the case of co- accused Mulazim Hussain who has been admitted to bail by this Court. So he cannot claim bail on the principle of rule of consistency. Offence also falls under the Prohibitory Clause of Section 497, Cr.P.C.
7. As stated by the learned D.D.P.P. On behalf of the State assisted by the learned counsel for the complainant, so far the Trial Court has recorded 16 out of 18 PWs. Only the statements of Javed Iqbal, A.S.I. And Muhammad Munir, S.I. Are yet to be recorded. Moreover, PW Tariq Mahmood 294/C has been again summoned by the accused for cross-examination..
No doubt there was direction of the High Court to decide this case before the end of 2009 which has hot been complied with by the Trial Court. However, the accused does not become entitled to the concession of bail on this ground.
By now it is well-settled that direction by a superior Court for disposal of a case within a particular period of time is always directory in nature and such a direction should be followed as far as possible, keeping in view the interests of justice care should be taken that justice is not sacrificed at the altar of expeditious disposal of cases. 1 Shams-ud-Din v. Muhammad Sharif (DB) 1996 MLD 1094 [Lahore].
In 'Muhammad Nawaz alias Deno and another v. The State' 2003 MLD 79 (Karachi), it has been laid down that "It needs to be clarified that indulgence shown by the superior Courts by issuance of such direction for the Trial Court to conclude cases within some specified period are only meant/aimed to expedite proceedings of the case against the accused and not to arm them with no called new ground for bail in case of non-compliance of such directions, as vehemently argued by Mr. Muhammad Ayaz Soomro. It will be seen that such a concept is totally alien to any statutory provision. Learned counsel, when asked to refer any provision of law in this context also failed to do so."
According to 'Abdul Qadir Sahar v. The State', PLD 2004 Karachi 287, it has been held that "In the first instance it was argued that failure to get the trial concluded within the period of two months undertaken in C.P. No. D-738 of 2003 itself entitled the petitioner to bail. We regret we are unable to agree. It is well-settled that such directions could only be treated as directory. In any event the order itself states that upon expiry of the said period the petitioner may be able to apply for bail (Underlining ours). It does not state that the petitioner shall acquire a right to the enlarge on bail."
In Abid Sohail v. The State' 2006 P.Cr.L.J. 864 [Lahore], it has been observed that "a direction had been issued to the learned Trial Court to conclude the petitioner's trial within the next three months.
It has been maintained by the petitioner through the present fourth petition that the above- mentioned direction issued by this Court has not been complied with and, thus, he may be admitted to bail.
I have, however, remained unable to subscribe to this submission of the learned counsel for the petitioner. It goes without saying that a direction issued by this Court to a Trial Court regarding conclusion of an accused person's trial within a specified period is only an administrative direction and the same does not confer any right of bail on the accused person if such direction is not complied with by the Trial Court on account of any exigency or any fresh development in the case."
8. Perusal of order sheet shows that the accused side has also contributed in delay in conclusion of trial by getting a few adjournments. On 30.6.2010 PW Munir, S.I./I.O. Was available but the learned counsel for the accused was not ready and the case was adjourned on his request. I, therefore, find that the petitioner has no case for bail. His bail application stands dismissed. However, the Trial Court is directed to conclude the trial of the case as soon as possible.