' SALEEM AICHTAR, J.---The petitioner seeks leave to appeal against the order of the learned Judge in Chamber dated 3-8-1995, whereby bail has been granted to Rab Nawaz respondent No,1 Notice was issued to the respondents. We have heard the learned counsel for the petitioner, respondent No,1 and the State.
2. One Khushi Muhammad lodged an F.I.R. On 10-1-1991 alleging that at about 10-15 a.m. While he along with Moula Bux his brother, Muhammad Anar and Mst. Sardaran were cutting the fodder near his Dera all of a sudden Rab Nawaz and Mirza Machhi armed with .12 bore guns, Mohri armed with 12 bore pistol, Maqbool alias Qooli, Mirza and Toora armed with Lathis came to the spot. Rab Nawaz raised Lalkara and thereafter fired at Moula Bux hitting on his chest. Thereafter, Mirza Machhi fired at Muhammad Anar nephew of the complainant hitting him on his right thigh. Rab Nawaz fired another shot hitting Muhammad Anar on his right arm. Moori fired at Muhammad Anar hitting him on his hip. About the motive it was alleged that Rab Nawaz was desperate and a man of bad character whom Moula Bux had forbidden to come to their locality on account of which two days earlier i,e, on 8-11-1991 Rab Nawaz stripped off Moula Bux's clothes and gave him beating. Moula Bux reported it to his son and relatives and apprehending that they would take revenge Rab Nawaz with co-accused came and committed the murder. The petitioner has stated that due to the influence of respondents the police did not proceed in the matter and the petitioner had to file writ petition in which assurance was given by the learned Additional Advocate-General that challenged would be submitted in Court within a week but as the same was not submitted, a private complaint under sections 302, 324, 148, 149, P.P.C. Was filed and the learned Additional Sessions Judge after recording the preliminary evidence summoned the accused persons by order dated 29-4-1991. Respondent No,1 Rab Nawaz was arrested on 5-1-1992 while respondents Nos.2 and 3 were arrested on 20-1-1992 and 26-1-1992 respectively. The police submitted the challenged on 14-6-1992. Bail application filed by the respondents was dismissed. The High Court also dismissed the bail application on the statement of the learned counsel for the State and the complainant that the entire prosecution evidence had been recorded and only a formal witness remained to be examined. Three months' time was given to conclude the trial. As the trial did not complete, the respondents filed bail application which was granted by the impugned order. The petitioner then filed this petition and by order dated 4-9-1995, it was observed that no case for interference with the impugned order to the respondents Nos.2 and 3 has been made out and to that extent the petition was dismissed. Notice was issued to respondent No,1 Rab Nawaz and the Advocate-General, Punjab. The advocate for respondent No,1 accepted the notice in Court.
3. The learned counsel for the petitioner contended that the learned Single Judge 'without consulting the record about the arrest and ascension of respondent No,1 and the proceedings before the trial Court granted bail on completely illegal consideration and the discretion has not been properly exerted. The learned counsel pointed out Paragraphs 8 and 9 of the petition which read as follows:- "8. That under a pre-planned scheme Rab Nawaz accused/respondent was got admitted in the District Hospital, Sargodha from where he escaped on 17-6-1992 and remained fugitive/absconder for sufficient long time and ultimately he was arrested on 18-1-1994.
9. That during the period of the ascendance of respondent No,1, the learned trial Judge initiated proceedings under sections 87, 88, Cr.P.C. And he was declared absconder and by separating the case proceeded with the trial of the other accused and examined 13 prosecution witnesses, namely, Muhammad Aslam P.W.1 (who identified dead body), Khuda Bakshsh P.W.2 (witness of recoveries of Sotas from Mirza respondent and Toor and other Mirza co-accused of the present respondents), Dr. Ijaz-ul-Haq P.W.3 (who conducted postmortem examination), Muhammad Farid S.I./S.H.O. P.W.4 (who arrested three accused including respondent No,2), Khushi Muhammad P.W.5 (eye-witness/petitioner), Muhammad Anaar P.W.6 (injured eye-witness), Zulfiqar P.W.7 (witness of recovery of blood-stained earth), Basharat Mumtaz F.C. P.W.8 (witness of recovery of stick from Maqbool co-accused of the present respondents), Muhammad Ishaque P.W.9 (who partly investigated the case) Mehr Khan Inspector P.W.10 (Investigating Officer), Amanullah P.W.11 (witness of delivery of parcels in the office of Chemical Examiner), Abdul Aziz Patwari P.W.12 (who prepared site plan) and Muhammad Anwar Rana S.I. P.W.L3 (recovery from Maqbool co-accused of the present respondents). The last prosecution witness was examined on 13-5-1993 and matter could not be decided but in January, 1994 Rab Nawaz respondent who was absconding was rearrested so in view of the re-arrest of Rab Nawaz, respondent the entire prosecution evidence has to be recorded afresh."
A
4. The learned counsel for respondent No,1 states that the facts enumerated in the aforestated paragraph quoted above are correct. The learned counsel for respondent No,1 contended that firstly the statement made earlier was not correct and secondly that the case has not proceeded expeditiously and there is no likelihood of case being concluded in the near future. It was further contended that respondent No, 1 was arrested on 5-1-1992, escaped on 17-6-1992 and was again re-arrested on 18-1-1994 and thus a total period of two years having passed, he is entitled to bail as a matter of right under the third proviso of subsection (1) of section 497, Cr.P.C. The learned counsel pointed out that the prosecution witnesses have been examined and in such circumstances bail should not be cancelled. The learned counsel has referred to Mst. Chanan Jan v. Muhammad Siddiq and another (PLD 1980 Supreme Court 147). In this case leave was not granted against the order of the learned Single Judge of the High Court granting bail to the respondent mainly on the ground that trial had concluded and the judgment was likely to be announced within 10 days. This judgment does not apply to the case of the respondent. In Muhammad Sadik and others v. The State (1980 SCM R 203) as the date for trial had already been fixed which was to commence shortly it was not thought proper to go into the merits of the case in form of a bail application at leave to appeal stage and the petition was dismissed. In Mst. Irshad Begum v. Muhammad Afzal and another (1985 SCM R 1691), petition for leave to appeal seeking cancellation of bail was dismissed as the trial was to commence soon and it was not thought fit to interfere at that stage. Similar observations were made in Muhammad Ismail v. Muhammad Rafique and another (PLD 1989 Supreme Court 585). . It is true that it has been a trend in the judgments of the Superior Courts that if the trial has to commence or has commenced or is likely to conclude soon, the Court would be reluctant to interfere with the order granting bail to the accused. Such observations mostly depend upon the facts of each case and have been mainly due to reason that any observation made in such proceeding may tend to prejudice the trial. But if application for cancellation of bail can be decided on grounds independent of merits and without even touching it, the Court can pass order as observation made therein will not prejudice the trial. In case where the accused misuses the concession of bail the same can be cancelled. Mst. Reshmajan v. Abdur Rehman (1991 SCM R 1849).
In such a case the Court would be justified to cancel the bail even if the trial is proceeding. Again in Shahnman and others v. The State (PLD 1994 SC 65) although the case was ripe for hearing the order of the High Court cancelling the bail was not disturbed as the trial Court had granted it arbitrarily and not according to law.
5. The present case is completely on a different pedestal and does not attract the principles enunciated in the foretasted judgments cited by the learned counsel for the respondent.
Admittedly respondent No,1 had escaped from the custody and was re-arrested more than 1-1/2/ years afterwards. This act itself was sufficient to refuse the exercise of discretion vested in the Court. In such circumstances it is not necessary to enter into the merits of the case or to make any observation on it and therefore no prejudice would be caused during trial. .
6. .The learned counsel for the respondent contended that after excluding the period during which the respondent had absconded he has completed two years' detention and is entitled to bail. . The two years' period has been calculated by adding the period of detention respondent No,1 had passed before he absconded and after his arrest. The third proviso relied upon by the learned counsel for respondent No,1 speaks of continuous period of detention and not by adding the intermittent periods caused by the illegal and unlawful act of the accused. The impugned order is set aside. The to respondent No,1 is cancelled. Non-boilable warrant be issued for his arrest. .