1. ' IFTIKHAR HUSSAIN BUTT.---This revision petition has been directed against an order of District Court of Criminal Jurisdiction Mirpur dated 12-7-2011, whereby respondent No.1 was granted bail.
2. ' The necessary facts forming the background of above tilted revision petition are that Muhammad Bashir, complainant, lodged an F.I.R on 30-3-2009 at 1-15 p.m. At DHQ Hospital Mirpur alleging therein that on the same day at 10-30 a.m. a procession led by Chaudhary Allah Ditta against upraising of Mangla Dam started from Kharik and when the procession reached nearby Khambal Chowk, Jhanzeb son of Qurban and Majeed, armed with .30-bore pistols and other accused- persons Tanveer son of Ayub, Qurban son of Adalat, Idrees and. Shoaib sons of Sajawal, Jameel son of Javaid, Abbas son of Muhammad Bashir, Muhammad Siddique son of Muhammad Alam also armed with .30-bore pistols arrived there and, raised objection about leading the procession.
3. Majeed, Tanveer and Qurban, accused-persons, were riding in the Jeep of Jhanzeb, accused, whereas other accused-persons were riding on motorcycles. All the accused-persons started firing from the front side with the intention of murder Jhanzeb, accused, fired shot with a .30-bore pistol upon Ameen whereas Muhammad Yusuf, Saqib and Arif who were riding in the Jeep of Ameen alighted. From the Jeep to rescue him but the fire hit Ameen upon his chest who fell down on the ground. Thereafter, Majeed, accused, fired a straight shot upon Muhammad Yusuf which hit him upon his right shoulder and left thigh. Tanveer, accused, fired a straight shot upon Muhammad Rasheed which hit him on right side of his abdomen, whereas Shoaib, accused, also fired second shot which hit Muhammad Rasheed on his left thigh Idrees, accused, fired a straight shot, which hit Saqib upon his left thigh.
4. ' Qurban, accused, fired shot which hit Ajaib on right side of his bladder. Jameel, Abbas and Siddique, accused-persons also fired straight shots upon Arif, which hit him upon his right shin, left thigh and right heel. On account of firing, the aforesaid persons after sustaining severe injuries fell down whereupon accused fled away from the spot by firing shots. The occurrence was witnessed by Chaudhary Allah Ditta, Chaudhary Maroof son of Raj Muhammad, Qadeer son of Nazeer and many other persons present at the place of occurrence.
5. ' The motive behind the occurrence has been stated to be a land dispute between Jhanzeb and Muhammad Ameen.
6. ' On this report, a murasla was sent to Police Station Mirpur where a case under sections 302, 324, 147, 148, 149 and 337, APC was registered.
7. ' Previously, the accused-respondent was refused bail by the District Criminal Court Mirpur as well as by this Court and Apex Court of AJ&K observing that in the circumstances of the case, the respondent was not entitled to be released on bail. Thereafter, the respondent presented a bail application before District Criminal Court Mirpur on the statutory ground in view of amendment in section 497,Cr.P.C.
8. ' The trial Court allowed bail to the respondent while holding that the respondent has been detained for a continuous period of 2 years, 2 months and 6 days and the delay in the trial has not occasioned on his part by applying for grant of bail before Shariat Court or Supreme Court and also for filing a writ petition before High Court. The trial Court- also expressed the view that in the circumstances of the case, the respondent is not hardened, desperate or dangerous criminal, as envisaged under proviso to clause (B) of section 5(iii) of amended statute, vide its order dated 12- 7-2011. It is against the aforesaid order of District Criminal Court Mirpur that the complainant party has come up in revision seeking the cancellation of the bail of the accused-respondent.
9. ' Messrs Raja Inamullah Khan and Khalid Rasheed Chaudhary, the learned Advocates for the petitioners, have zealously argued that the accused-respondent was not entitled to bail because the delay in conclusion of trial has occasioned by him and also by other persons acting on his behalf. The learned counsel pointed out that the respondent was arrested on 30-3-2009 and he presented a bail application before District Criminal Court Mirpur, which was dismissed. Feeling aggrieved, he filed revision petition before Shariat Court on 4-9-2009, which was decided on 4-12- 2009; thus, the file of the trial Court remained with the Shariat Court for about 3 months-. Moreover, a writ petition was filed in the Hi eh Court by a co-accused and the file remained \\ ith the High Court for about 11 months and 3 days. Likewise, on dismissal of his revision petition filed for grant of bail, the accused-respondent approached the Supreme Court and the file of the trial Court remained with the Apex Court for about 7 months and 14 days; therefore, the accused-respondent has failed to satisfy the Court that delay has not been occasioned by him or by his co-accused, but the trial Court failed to calculate the period of continuous detention 'of the accused- respondent. The learned counsel further contended that the accused-respondent is hardened, desperate and dangerous criminal, who murdered three persons and made an attempt to murder six other persons, amongst them three P. Ws. Were severely injured. The learned counsel also agitated that the accused-respondent being principal accused is a person who planned and initiated the occurrence and played an active role in crime of triple murders. The learned Counsel invited our attention towards the charge-sheet framed against the accused-respondent, whereby according to his explanation, the time and place of occurrence, the presence of accused and eye- witnesses and manner of occurrence have been admitted by the accused-respondent; therefore, it can easily be said that accused-respondent is a hardened, desperate and dangerous criminal, but the Court below also failed to appreciate the circumstances of the case and has drawn wrong conclusion in this regard; therefore, the impugned order may be set aside and concession of bail allowed to the respondent may be recalled. In support of their contentions, the learned Advocates cited the following case-law:--
(1) 1996 PCr.LJ 22; (2) 1996 PCr.LJ 704; (3) 1996 PCr.LJ 748; (4) 1997 SCM R 32; (5) 1998 SCM R 897; (6)
10. 2000 YLR 2581 and (7) 2001 PCr.LJ (Sh.0 AJK) 895.
11. ' Mehmood Hussain Chaudhary, the learned Asst. A.G. Appearing on behalf of the State has fully owned and supported the arguments raised by learned Counsel for the petitioners.
12. ' Abdul Hameed, the learned counsel for the accused-respondent controverted the -arguments raised by the learned counsel for the petitioners and submitted that a writ petition was filed by Abbas son of Yusuf (deceased) and not by co-accused Abbas son of Bashir. The learned counsel further contended that the High Court summoned the record in writ petition on 9th April, 2009 and Supreme Court summoned the record from High Court on 30th March, 2010.The learned counsel pointed out that not only Jhanzeb accused-respondent filed a revision petition for grant of bail but also the complainant party filed a revision petition for cancellation of bail of other accused persons; therefore, the delay has note occasioned by accused-respondent for the period consumed in the proceedings before Shariat Court. The learned counsel laid great stress upon the point that the delay cannot be attributed to the accused-respondent for the time consumed in grant of bail because it is an inherent right of an accused to claim bail before the Courts; therefore, the period consumed before Shariat Court or Supreme Court cannot be attributed to the accused- respondent. The learned counsel further maintained that accused is not a hardened, desperate or dangerous criminal because the occurrence' took place at a spur of moment. The learned counsel for the respondent defended the impugned order on all counts. In support of his arguments, the learned counsel referred to us the following authorities:--
(1) 1992 PCr.LJ 1511; (2) 1994 PCr.LJ 1468; (3) 1998 PCr.LJ 358; (4) 1998 PCr.LJ 821 and (5) 1999 PCr.LJ 966.
13. ' We have carefully taken into consideration the respective contentions of the learned Advocates for the parties; perused the record and the case-law cited.
14. ' Before discussing the arguments of the learned Advocates for the parties in detail, it would be useful to reproduce hereunder section 5 of the amending Statute:-- 'Amendment of section 497, Act V of 1898.---In the said Code, in section 497, in subsection -(1), -
(i) in the first proviso, after the word "years" the words "or any woman" shall be inserted;
(ii) the second, third and forth provisos shall be omitted; and
(iii) in the fifth proviso, for the full stop at the end a colon shall be substituted and thereafter, the following provisos shall be added: "Provided further that the Court . Shall, except when it is of the opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his. Behalf, direct that any person shall; be released on bail,-
(a) who, being accused of any offence not punishable with death, has been detained for such offence for a continuous period :exceeding one year or in case of a Woman exceeding six months and whose trial for such offence has not concluded; or
(b) who, being accused of an offence punishable with death, has been detained for such offence for a continuous period exceeding two years and in case of a woman exceeding one year and whose trial for such offence has not concluded: ' Provided further that the provisions of the foregoing proviso shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Court, is a hardened, desperate, dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life."
15. ' A deep scrutiny of above stated provision of law reveals that if an accused is detained for a continuous period exceeding two years and whose trial has not conclude and delay has not occasioned by B an act of accused or any other person acting on his behalf provided he is not a hardened, desperate, dangerous criminal, he shall be released on bail. Therefore, first of all it has to be held whether the accused remained in detention for a period exceeding two years.
16. ' It appears from the perusal of the challan file that the challan was filed on 8-5-2009 but the trial Court could not proceed further till 9-6-2009 because of the absence of co-accused; thus, the trial was delayed for one month one day. Our aforesaid view finds support from a case Javed Ali v.
17. State 2000 YLR 2581 wherein the following principle was enunciated in paragraph (6) at page 463 of the report:-- "A perusal of the facts reveals that petitioner along with his co-accused are responsible for causing murder of Saleem Khan as well as Liaqat and injuring as many as 6 persons. The petitioner and his co-accused were armed with deadly weapons at the relevant time. There is no doubt that the petitioner was arrested on 18-2-1998 and since then is in jail yet this fact alone is not to be taken into consideration while extending benefit under third . Proviso to section 497(1), Cr.P.C.
18. ' A perusal of the order sheet reveals that trial has not started on account of absence of one or the other co-accused of the petitioner. Thus delay in the commencement of the trial is due to an act of co-accused of the petitioner. It is under these circumstances that relief of bail has been refused as held by the august Court reported in 1998 SCMR 897."
19. ' Similarly, because of filing revision petition before this Court, the challan file remained in the Shariat Court from 7-10-2009 to 23-12-2009 for 2 months and 16 days. The trial was further delayed from 3-2-2011 to 15-3-2011 because of the absence of the counsel for the accused respondent. The file further remained pending from 25-6-2011 to 7-7-2011 because the respondent presented an appeal before Apex Court. Thus, delay in trial occasioned by an act of accused-respondent and other persons acting on his behalf in the following manner:-- Period MonthsDays
1. 8-5-2009 to 9-6-200901 01
2. 7-10-2009 to 23-12-200902 16
3. 3-2-2011 to 15-2-2011 00 12
4. 23-7-2011 to 16-4-2012 08 23 Total12 22 ' If the delay of one month and one day, which occasioned because of coaccused, is deducted, even then the delay in trial becomes 11 months 22 days. The accused-respondent was arrested on 30-3-2009 and the impugned order was passed on 12-7-2011; thus, total, period of detention of respondent comes to 2 years 3 months and 12 days and if the delay occasioned by the respondent which Comes to 11 months 22 days is deducted from the Whole period of detention, the total period of detention comes to one year 3 months and 22 days.
20. ' Now the question arises whether the time consumed by the respondent for grant of bail by approaching Shariat Court and Supreme Court or by filing writ petition before High Court, can be attributed to the accused-respondent or not? In this regard, the learned counsel for the respondent cited Ehsan Ali's case (1992 PCr.LJ (Peshaurar) 1511), wherein it was held that the delay occasioned in conclusion of trial on the ground of requisitioning the file by Nigh Court cannot be attributed under law to the accused-person, as it is his inherent right to claim bail from the Courts.
21. ' On the other hand, the learned counsel for the petitioners also cited Dawa Jan's case (1996 PCr.LJ 704), wherein it was observed as under:-- "The contention raised by the learned counsel for the petitioner is misconceived and the application in hand is premature because after deducting the period consumed by the bail applications moved by the petitioner during the two rounds the statutory period of one year will expire after three months. The abovementioned proviso was deleted at some stage but was reinserted by the Code of Criminal Procedure (Amendment) Act, 1994 with slight modifications. In view of the expression in exercise of any right or privilege under any law for the time being in force used therein the period spent in the exercise of the statutory right for bail is to be counted against the accused and deducted from the prescribed period of one and two years. It is scarcely necessary to mention that this expression has given a new dimension to the third proviso and changed the principle enunciated by certain off-quoted authorities that it is the statutory right of an accused to seek bail and if he avails that right the time spent in that context cannot be counted against him while determining the question of delay in trial."
22. ' As it has been opined in the above captioned case that it is a statutory right of an accused to seek bail but if he avails the right, the time spent in this context would be counted against the accused while determining the question of delay in trial. Therefore, Ehsan Ali's case (1992 PCr.LJ (Peshawar)
23. 1511) cannot be relied upon.
24. ' It will be necessary to mention here that the view expressed by a Judge of a High Court or Shariat Court is not authoritative but only persuasive for every other Judge of High Court or Shariat Court.
25. Our view finds support from a case reported as Omair Ahmed Siddiqui v. The Slate (1996 PCr.LJ 22) wherein the following principle was enunciated at page 27 in paragraph 6 of the' report:- "So far as the first set of judgments is concerned, apparently the same does not support he contention of the learned counsel because facts mentioned in those cases were not similar to the facts of the case of the present applicant. I have expressed in several judgments that a view expressed by any Judge of a High Court is not authoritative but only persuasive for every other Judge of a High Court. Therefore, it is not necessary that if any Judge has granted or refused bail to any person on the basis of any opinion possessed by him, then other Judge should also go on granting or refusing bail on the same principle or on the same proposition. 1 would like to add that if several judgments of different S. Bs. Show similar views of different Judges regarding interpretation ,of any provision of law, the same cannot be a ground for granting or refusing any relief to any person unless there is similarity of facts between those cases because each -. Case has to be decided on the strength of its own merits."
26. ' It will not be out of place to. Note here that the peculiar facts and surrounding circumstances of each case primarily govern the situation and attract the applicability of particular principles of law; therefore, we are of the opinion that in the circumstances of the case, the view taken by learned Judge in Dawa Jan's case (1996 PCr.LJ 704) is more akin to the statute. .
27. ' In such state of affairs, the time consumed by the learned counsel for the respondent in filing revision, petition before this Court and filing an appeal before Apex Court would be counted against the accused; therefore, it is held that the delay in conclusion of trial has been occasioned by the act of accused; thus, he is not entitled to be released on bail under proviso to section 5(iii) of the amending statute.
28. ' As far as the question of his being hardened, desperate, dangerous criminal is concerned, he can easily be dubbed as hardened, desperate and dangerous criminal, as envisaged in proviso to clause (B) of section 5(iii) of the amending statute.
29. ' A careful perusal of the record shows that accused-respondent is principal accused, who, according to his own version while replying to charge-sheet framed against him stated that he was leading the procession comprising of 100 vehicles where the occurrence took place in daylight, resultantly, three persons were killed and three were severely injured, by lethal weapons. Thus, according to the learned counsel for the petitioners in the light of the statement of the respondent, the time, date and place of occurrence, the presence of the accused and the P.Ws., the death of the deceased by the shots, of lethal weapons and the injuries sustained by injured P.Ws. By firearm have been admitted by him. Therefore, he can easily be described a hardened, desperate, dangerous criminal but the trial Court did not apply its judicial mind towards the aforesaid aspect of the case and disposed off the matter when, recording a single sentence that he cannot be declared a hardened, desperate, dangerous criminal. In this- regard, Muhammad Siddique case 1998 PCr.LJ 358 cited by the learned counsel for the accused-respondent does not render any help to him because of distinguishable facts. Hi the case under report, the accused was alleged to cause two injuries with dagger to the deceased and also injured two other members of the complainant but he also sustained two injuries; -therefore, he was not declared a hardened or desperate criminal. It was further observed that each case has to be decided in view of material and not on the basis of allegation.
30. ' It is pertinent to note here that a writ petition was filed against the P. Ws and son of Muhammad Ameen, deceased, to register a case against them in support of the version Of the accused- respondent; thus, the time consumed before the High Court is not calculated against respondent.
31. ' In view the aforesaid discussion, the delay in conclusion of trial has occasioned by the accused- respondent add by other persons acting on his behalf and he is also a hardened, desperate, dangerous criminal; therefore, the impugned order is not sustainable.
32. ' The upshot of above discussion is that we accept this revision petition, set aside the impugned order dated 12-7-2011 and recall the concession of bail. Consequently, the accused-respondent shall be arrested and detained in judicial lockup.