1. ' MAQBOOL AHMED AWAN, J.---Granted subject to all just exceptions.
2. Applicant Salman Raza Khan, facing trial in the Court of learned find. Additional Sessions Judge, Karachi, vide bail application before the learned Trial Court and the same was dismissed by the learned Trial Judge on 29-4-2008.
2. ' Thereafter the same was repeated being Criminal Bail Application No,496 of 2008 before this Court and the same was dismissed on 20-6-2008. Before filing the bail application, prosecution examined P.W.1 Mk. Anjum, the complainant, P.W.2 Dr. Zubeda Nisar, P.W.3. Muhammad Ashique.
3. ' Again after examination of P. Ws. Aftabuddin, Mst. Khatija, Syed Nasjeeb Ashraf, Talat Ara Khilji, Mehtabuddin, Ali Gohar and Dr. Fareeda, the applicant filed the bail application before the learned Trial Court and the same was dismissed on 14-5-2009. Now again the applicant has moved this Court for grant of bail.
4. ' Facts of prosecution case as per contents of F.I.R. Are that complainant Mst. Anjum Waseem is living at the address given in the F.I.R. And she is a household wife; that marriage of her daughter Mst. Sania, aged about 19 years was solemnized with Salman Raza Khan (applicant) about two and half year back that her daughter has a son aged about eight months; that from the day of marriage her daughter used to be beaten up by the applicant; after bearing she was kicked out from the house; that two months back applicant's father Murtaza Raza Khan took the daughter back with him from the house of complainant to his house; that on 13-3-2007 her elder brother Aftabuddin informed complainant on telephone that Mst. Sania was found dead on Flat No,B-214, Rufi Heavens, Block 13-D/2, and that she had received fire-arm injury on her breast; that on receipt of such information, the complainant made enquiry from applicant, who told her that Sania had committed suicide; that complainant alleged that applicant had killed her daughter by firing with his own pistol due to family dispute.
5. ' After registration of F.I.R., the police took up investigation and during the course of that recorded the statements of witnesses, arrested applicant on 14-3-2007, who made recovery from the applicant and 9 MM pistol with 10 live bullets etc. And after completing usual investigation submitted the challan before the learned Lower Court, who sent-up the same to the Court of learned Sessions Judge, wherefrom the same was received by the learned IInd Additional Sessions Judge, Karachi East for Trial. As stated above in all 10 witnesses were examined.
6. ' Mr. A.Q. Halepota, learned counsel for the applicant has argued that while deciding the bail application, the Court has to make tentative assessment of the material available with the prosecution. Per counsel, the most material part of the investigation was conducted by the prosecution before registration of the F.I.R.; that complainant failed to explain the delay in lodging of the F.I.R., though the P.S. Was situated at the distance of 3/4 Kilometers from place of occurrence, and under such circumstances, the deliberation and consultations cannot be ruled out. Per counsel, the prosecution should have obtained the opinion from the hand writing expert about the figure prints on the trigger of the pistol and also pointed out the contradictions between the depositions of the witnesses. Per learned counsel, the applicant has been falsely implicated in the case and, therefore, prayed for grant of bail.
7. ' Mr. Abdul Rehman Kolachi, the learned Assistant Prosecutor General Sindh, while vehemently opposing the bail has contended that it is well settled that while deciding the fate of bail, the apex Court has observed that only tentatively the material is to be considered and deeper appreciation has always been deprecated. In support of his contentions, he has relied upon the case of Muhammad Zamir v. State reported in 2001 PCr.LJ 935, the case of Mian Mehjraj Din, and others v.
8. The State reported in 1985 PCr.LJ 2987, the case of Sabz Ali and 3 others v. The State reported in PLD 1993 Quetta 66.
9. I have heard the learned counsel for the parties and minutely perused the entire material brought on record. The allegation against the applicant is that he had committed the murder of his wife Mst. Sania by way of firing and the pistol allegedly used in the commission of offence has been recovered from the applicant/accused. The material witnesses have been examined and only the formal witnesses are yet to be examined by the learned Trail Court. It is also an admitted fact that- only the evidence of formal witnesses are yet to be examined. It is admitted fact that the applicant is behind the bars since 14-3-2007. It is also admitted fact that the bail applications, as mentioned above, filed by the applicant were rejected on merits by this Court. The arguments advanced by the learned counsel for the applicant requires deeper appreciation at this stage and as observed above. It is well settled that the Honourable apex Court has laid down the principle that while deciding the bail application, the Court should refrain themselves from going into deep and can tentatively asses the material available on record. In the present case the learned counsel for applicant has discussed the evidence brought on record by the prosecution; which is the function of trial Court to consider the evidence after conclusion of the trial, and at the stage of bail, no observation can be made.
10. ' In the case of Muhammad Zamir, supra, it has been held:-- "(5) It is admitted by the learned counsel that the charge has been framed under section 302, P.P.C.
11. But it is contended that framing of charge under section 302, P.P.C. Does not mean that the conviction would be recorded under that section specially when on the allegation levelled against the petitioner, the case, at the maximum, would be covered by section 308,. P.P.C. The argument may look to be sound but the same cannot be accepted for the reason that it is for the Trial Court to determine after appraisal of evidence as to what offence is made out. The learned counsel has placed reliance on the case of Khalil-uzZaman v. Supreme Appellate Court, Lahore and 4 others (PLD 1994 SC 885) wherein the accused-person who had killed his wife had been convicted under section 302, P.P.C. But the conviction was set-aside and the case was remanded with an observation that section 302, P.P.C. Was not constituted. The learned counsel, however, is not aware of the fact that the judgment cited by him had been reviewed by the Hon'ble Supreme Court. It has also been laid down recently by the Hon'ble Supreme Court that when the allegation is of murder then the charge has to be framed under section 302, P.P.C. The same has been done in the instant case. It would, therefore, be pre-mature and unjust to hold that ultimately the offence would be covered by section 308, P.P.C. And not by section 302, P.P.C. Proviso (2) to section 497, Cr.P.C.
12. Cannot be pressed to the extent that in the first instance, the Court should determine without trial as which offence is likely to be constituted on the basis of facts brought on the record so far, and thereafter the benefit of the proviso should be extended to an accused-person. The contention raised by the learned counsel, therefore, suffers from fallacy which cannot be acceded to. Apart from the aforesaid question of law, even on factual plane, it is argued by the prosecution that the material witnesses have been examined. The conclusion of the trial is quite in sight, the exercise sought to be undertaken by the learned counsel for the petitioner will materially prejudice the case of the prosecution at trial stage.".
13. ' In another case of Sabz Ali and 3 others v. The State, supra, it has been held:-- "It is settled principle of law that if the grounds urged- in the bail application have been considered and rejected in the first application the second would only be competent if fresh material has come on record, which indicates new developments on the facts, relevant for disposal of bail matter, or any other ground which was not available at the time of hearing of earlier application. As far as filing or non-filling of the challan is concerned, per se it is not to be considered a fresh ground for considering the plea of accused to be released on bail. The scrutiny of the previous bail application reveals that the applicants have stated that the investigation in the case is almost complete which means that soon after the dismissal of the application challan was filed and no new development had occurred, warranting to consider the request of accused for bail. In this behalf the Hon'ble Supreme, Court in the case of Saleh Muhammad v. The State 1983 SCMR 341 laid down the following principle:-- "It will be observed that the request of the respondent for bail was once rejected on merits by the first order of the High Court, dated 14-10-1980 and normally unless the repeated request was made on grounds, other than those available at the time of the first application, fresh application on merits could not be entertained by the High Court. However, the perusal of the impugned order shows that the decisive consideration for grant of bail was question of delay in concluding the trial."
14. ' The above rule of the law was re-considered in the case of State through Advocate-General, N.- W.F.P. v. Zubair and 4 others PLD 1986 Peshawar P.173). Keeping in view the above dictum of the Hon'ble Supreme Court of Pakistan, I am inclined to hold that grounds urged by the learned counsel for the applicants enlisted at Serial Nos. (i) to (iii), were previously agitated before this Court but were not found sufficient to enlarge them on bail. Thus this application to the extent of above grounds is not competent."
15. ' In another case of Mian Mehraj Din, and others v. The State, supra, it has also been held:-- "(4) I have considered the arguments advanced by the learned counsel for the parties carefully. I find that during the investigation, the Police has collected evidence furnished by Maulvi Abdul Wahid and Sarwar Javed P.Ws. To the effect that the three petitioners were party to criminal conspiracy to commit the murder of Sh. Muhammad Asghar and others; that the allegations that the petitioners were party to criminal conspiracy to commit the murder of the deceased are mentioned in the F.I.R. That the case of Mian Abdul Kabir is quite, distinguishable inasmuch as the plea of alibi raised by him, finds support from the oral as well as reliable documentary evidence collected by the Police during the investigation; that the submission made by the learned counsel relatable to the credibility Maqsood Ahmad and Maulvi Abdul Wahid P.Ws. And the probability/ importability of the version given by these witnesses, require deeper appreciation which is neither permissible nor desirable in bail matter; that the arguments addressed by the learned counsel in this behalf travel beyond the scope of tentative assessment and that the alleged offences fall within prohibitory clause of section 497, Cr.P.C.".
16. For the foregoing reasons, I am of the considered view that the applicant has not made out the case for grant of bail, accordingly I dismiss the same. However, as per the statement at bar that only the formal witnesses are to be examined, keeping in view the above, I direct the learned trial Court to conclude the trial within a period of three months on receipt of this order. The learned trial Court is required to send the progress report of the case to the MIT of this Court.