The petitioner (Qutab Din in Criminal Misc. No. 2825-B/81) and (Khaliq Dad, etc. In Crl. Mist. No. 3239-B/81) are accused of the same case and are seeking bail on similar grounds. Both the petitions are being disposed of by the same judgment.
2. The petitioners are seeking bail in case F. I. R. No. 235 dated 20th August. 1980, Police Station Khushab under sec--tions 307, 326, 325, 148 and 149, P. P. C., pending in the Court of Kanwar Azmat Ali Khan, Judicial Magistrate, Shahpur/Jauharabad.
3. The occurrence had taken place at 2 p. m. On the 20th August, 1980 in the premises of Courts at Jauharabad. The petitioners along--with three others are alleged to have taken part in this occurrence. Three persons were injured. Rabnawaz suffered 15 injuries out of which 12 were incised injuries. Two injuries were found to be grievous, one on the neck and the other on the nose. In fact the nose of Rabnawaz was sliced away with the knife. Habib Ullah sustained four injuries. Ata Muhammad P. W. Also was injured by a knife. The complainant party on the day of occurrence had come to appear in a criminal case in which one of the present petitioners was a complainant. The earlier petition for bail of the petitioners was rejected by my learned brother M. S. H. Qureshi, J (now Judge of the Supreme Court) vide orders dated 16th May, 1981. The petition was considered on merits of the cast.
4. It is contended by learned counsel for the petitioners that the plea of some of the petitioners that the allegation against them is only of causing simple injuries to the P. Ws. Was not considered when the petition for bail had come up before my brother M. S. H. Qureshi. J. On 16th May, 1981. The learned counsel for the petitioners have argued that the merits not considered in the previous petition for bail can be considered in a second petition. Reliance in this regard has been placed on Gulzar v. Ghulam Murtaza (PLD 1970 SC 335). The other argument of the learned counsel for the petitioners is that they are in jail since 21st September, 1980 and thus a period of more than one year has elapsed and the trial has not been concluded. It is contended that the provisions of section 497, Cr. P. C. Are attracted and as such the petitioners are entitled to the concession of bail.
5. Learned counsel for the complainant and the State have opposed the bail. With regard to the contention of grant of bail on merits, learned counsel for the State has pointed out that the bail has already been rejected on merits by my brother M. S. H. Qureshi, J vide orders dated 16th May, 1981, and consideration of bail of the petitioners on merits would amount to reviewing the order of another fudge. Reliance in this regard is placed on Iftikhar Ahmad v. Abdul Razzaq and 6 others (PLD 1981 SC 235). In this case the respondents were granted bail by a Single Judge of this High Court.
The complainant sought cancellation. The main ground was that the earlier bail petition of the respondents has been rejected by another Judge. Their Lordships of the Supreme Court cancelled the bail cf the respondents. It was observed that the learned Judge who granted the bail had no jurisdiction to review the order of his own brother Judge of the same Court.
6. I have gone through the judgment reported in PLD 1970 SC 335. The facts of that case were different. 1n that case the bail of the accused was cancelled by my brother Mushtaq Hussain, J. (as he then was) vide orders dated 8th August, 1969. The accused moved a petition under section 561- A of the Code of Criminal Procedure. The contention of the accused was that they had not been heard. My brother Mushtaq Hussain, J (as he then was) after hearing the parties recalled the cancellation of bail order passed by him on 8th August, 1969. This contention found support from the fact that Mian Hamiduddin, Advocate who was engaged by the respondents did not appear for the reason that he had not received the supplementary list in which that case was listed. Thus the facts of that case are different from the case in hand. It may, however, be mentioned that their Lordships of the Supreme Court cancelled the bail of the accused on merits.
7. I have gone through the order dated 16th May, 1981, passed by, my brother M. S. H. Qureshi, J. The contention of the learned counsel for the petitioners that the individual parts played by the petitioners were not considered, is not borne out from the record. In the submissions of the learned, counsel for the petitioners recorded in that order it is mentioned that although Khaliq Dad petitioner was armed with a gun, be never used it, shows that the petitioner had no intention of causing the death and that section 307, P. P. C. Was not attracted'. Reference has been made to the part played by him. The fact of reference to the part played by Khaliq Dad petitioner is clearly indicative of the fact that the parts played individually must have been argued before my learned brother. Thus considering the, order passed by my brother M. S. H. Qureshi, J. And taking light from Iftikhar Ahmad's case I hold that I cannot go into the merits of the case to decide this bail application.
8. Learned counsel for the State has not controverted the fact of the petitioners being in jail since 21st September, 1980. However, he has contended that the petitioners cannot avail the benefit of the provisions of non-conclusion of the trial in one year, for the reasons that they have been at fault and if the trial has not concluded it is because of their conduct and conduct of their co- accused. He has referred to the order-sheet and pointed out that adjournment of the case for non- -appearance of the P. Ws. Was only on one date. He has argued that it is incumbent upon the accused to prove that he has suffered detention for the statutory period for no fault of his. Learned counsel for the State has also attempted to enunciate that the word, `accused' used includes plural, and in case of absence of the co-accused, the delay caused because of his absence will also be the responsibility of the other accused in delaying the trial, as according to him the trial when held jointly, will have the joint responsibility of the accused for any delay on their part.
9. Learned counsel for the petitioners have argued that as all the petitioners were never granted bail, they cannot be held liable for any delay. It is contended that the adjournments ordered on the ground of non-appearance of a co-accused are not their responsibility and that the delay in not concluding the trial entirely rests with the prosecution. Reliance in this regard has been placed on Muhammad Sultan v. The State (1981 P Cr. L J 1014).
10. According to the certified copy of the order-sheet the case was adjourned on four dates for non-availability of the file of the case which had been summoned by the Court of Session with regard to the petitions for bail filed by the petitioners. The file was not available to the learned trial Court on 1 March, 1981 till 10th May, 1981, on which date a medical certificate was produced on behalf of one of the accused on bail, and the case was adjourned to 19th May, 1981. Thus the delay of more than 2 months was caused. On the 13th June, 1981, all the accused were present, the P. Ws.
Were also present but the adjournment was ' sought on the ground of non-availability of the counsel for the accused who was busy in Elections. The case was adjourned to 24th June, 1981 when the evidence of two prosecution witnesses was recorded. The case was then adjourned to 8th July, 1981, on which date the statement of one witness was recorded and the case was adjourned to 22nd July, 1981. On that date Karam Elahi co-accused of the petitioners did not appear. A medical certificate was produced on his behalf. The case was adjourned to 5th August, 1981, then to 29th August, 1981. On both these dates Karam Elahi accused was absent. The attendance of all the accused persons was complete on 9th September, 1981 and the case was adjourned to 23rd September, 1981 when the evidence of two P. Ws. Was recorded. The case was adjourned to the 7th October, 1981. On that date statement of one witness was recorded, Aman Ullah. S.-I. P. W. Did not appear. He was summoned for 14th October, 1981. He again did not appear on that date. He appeared on the next date i. e. 31 October. 1981 but Karam Elahi accused was absent, the other accused were also not produced and the case was adjourned further.
11. Learned counsel for the complainant has stated that since after 31st October, 1981 the case of Karam Elahi accused has been separated, the evidence of Aman Ullah, S.-I P. W. Has been recorded and the case for prosecution has been closed.
12. Learned counsel for the petitioners have conceded that each time the file summoned by the Court of Session was on the application of the accused.
12. I have considered the arguments of the learned counsel for the parties. In Muhammad Sultan's case there was only one accused. During one year only the statement of one witness was recorded. The facts of that case are different from the case in hand. In fact the facts are unique. In that case the learned Additional Sessions Judge, Hyderabad had referred the file to the Sessions Judge, Hyderabad for withdrawing the case from this Court. The reason was that during examination of a witness there was some untoward incident which involved the learned counsel for the accused; for which the learned counsel later apologised to the Presiding Officer. Learned Additional Sessions Judge on the same day was approached by someone on behalf of the accused that for reasons of the behaviour of the learned Advocate, his mind might be prejudiced and for that he may transfer the case to some other Court. The learned Additional Sessions Judge in these circumstances sent the file with a reference to the Sessions Judge, Hyderabad for withdrawing the case from his Court on 18th October, 1980. The learned Sessions Judge, Hyderabad passed the orders on the same day, rejecting the reference but somehow or other the record of the case was not received back by the learned Additional Sessions Judge uptill 16th April, 1981. Quite obviously this delay of about 6 months could not be placed on the account of tile accused. There is another distinction. The bail was not only granted on the ground of delay. The other factor which was considered by the Court was the affidavits of the two P. Ws. Who had deposed in their affidavits that the accused being tried was not the person who was driving the vehicle when the accident took place. It may be mentioned that it was a case of accident. After going through the judgment one is more impressed by the fact that the bail was granted on the ground of submission of these affidavits, than on the ground of delay. Reverting to the facts of the presentst st case, it may be observed that the delay which occurred because of non-availability of the file, cannot be the responsibility of the prosecution or the complainant because the learned Advocate who had been filing the applications for bail on behalf of the petitioners before the Court of Session in which the file was requisitioned by the learned Sessions Judge, was acting on behalf of the accused (petitioners) and thus it cannot be argued that nobody was acting on their behalf for this delay. No doubt the word used in proviso 7 to section 497 of the Code of Criminal Procedure is `shall' but the fact that, except where it is of opinion that the delay in the trial of the accused has been occasioned by the act or omission of the accused or any other person on his behalf does not leave any doubt in my mind that this `shall' is to be read in consonance of the facts of each case and where the delay is found to have been caused by any act of the accused or by any person acting on his behalf, the word `shall' will not have the dictionary meaning and it will fall within the discretion of the Court, which, of course is to be exercised keeping regard of the facts of each case.
In this case apart from the fact that the delay was caused for more than two months because of the bail petitions moved thrice by the petitioners, the delay was also caused because of the absence of a co-accused. It is really a moot point, whether for the delay caused by the absence of a co-accused the accused petitioners seeking bail will be considered liable. On the face of it the answer would be that the accused cannot be held liable for the act of his co-accused but it is to be seen in the context of each case where all the accused are being represented by the same counsel and one of the accused absents himself on the ground of illness always on different dates, particularly when the evidence in the case is being recorded, it is not difficult to conclude that this was done intentionally, for some, gains or ulterior motives. Ulterior motives can be of just pestering the P. Ws., gains can be in the form of getting the bail of the co-accused on the ground of delay and or for the reasons of winning over the P. Ws. No hard and fast rule can be laid down in this regard but keeping in view the facts of the present case where the bail already was rejected on merits vide orders of this Court and the petition for bail was being refused time and again by the Sessions Judge and the prosecution evidence was available whenever summoned except on one date it is not difficult to conclude that the absence of the co-accused was intentional for the benefit of the co-accused. For these reasons the petitioners have failed to make out a ground for bail on the basis of non-conclusion of trial within one year. It may also be noted that the prosecution evidence has already been closed as stated by the learned counsel for the complainant and it is now up to the petitioners to get their case concluded by producing their defence, if they have to, at an early date.
In the circumstances of the case I feel, it would be proper to issue a direction to the learned trial Court to conclude the trial at the earliest, of course keeping in view the covenience of the accused for production of defence evidence, if they want to.
The net result is that the petitions for bail are rejected.