This is a petition for the grant of bail filed by Rashid Khan and Abid Tanveer Khan petitioners in a case F.I.R. No. 135, dated 24-5-1994 registered under section 302/324/148 read with section 149, P.P.C. At Police Station Pir Wadahi, Rawalpindi.
2. Brief facts of this case as gleaned from the F.I.R. Are that on 24-5-1994, Ghulam Ismail and Ghulam Hameed, who are relatives of the complainant, had an altercation with Khalid and Taimoor, co-accused of the petitioners, on striking a cricket ball in which they belaboured each other. Soon thereafter, Abid Khan petitioner met the complainant and invited him to come to his Dera so that the matter could be patched up. On the same day, at 8-15 p.m. The complainant, his son Ishtiaq Hussain alias Allah Ditta in the company of Ghulam Sarwar, Zulfiqar Ahmad and Ghulam Safdar P.Ws. Went to the Dera of Abid Khan. When they reached near his Dera, the accused party variously armed with weapons came in front of them. Abid Khan end Rashid Khan petitioners, Khalid, Aamir sons of Muhammad Yaqoob and Majeed son of A.I Haider were having Chhuris whereas Taimoor accused was empty-handed. The role of Lalkara is also attributed to Abid Khan petitioner. The petitioners and their co---accused attacked the complainant party and killed Ishtiaq Hussain by inflicting successive Chhuri blows on various parts of his body. When the complainant proceeded towards his son, he was also given a Chhuri blow by Aamir accused on the right side of his abdomen. On the complainant's side, Muhammad Nawaz and Riaz Khan were also injured. So on the statement of the complainant, the aforesaid case was registered at Police Station Pir Wadhai.
3. This petition has not been argued on merits by the learned counsel for the petitioners. But the bail is sought on the ground of statutory delay in conclusion of the trial. In support of his contention, learned counsel has referred to two cases reported as Zahid Hussain Shah. v. The State PLD 1995 SC 49 and Shamon Jatoi v. The State 1996 PCr.LJ 783.
4. On the other hand, learned State Counsel assisted by learned counsel for the complainant has opposed the grant of bail to the petitioners on the ground that the delay in conclusion of the trial has been caused by the accused themselves and the petitioners being desperate and hardened criminals are not entitled to the grant of bail. They belong to a group of Chhuri inflictors. Learned counsel for the complainant has placed on record four copies of the F.I.Rs. Namely F.I.R. No.265, dated 16-11-1988 under section 307/34, P.P.C., F.I.R. No.171, dated 8-6-1991 under section 13 of Arms Ordinance, 1965, F.I.R. No.158, dated 28-5-1991 under section 324/34, P.P.C. Registered at Police Station Barmi, whereas F.I.R. No.322, dated 30-10-1991 under sections 452, 337/F-6, 324, 148 and 149, P.P.C. Registered at Police Station Pir Wadhai. (Subsequently, the petitioners have been acquitted in F.I.Rs. Nos. 158 and 322 on the basis of compromise). Learned counsel has drawn my attention towards the proceedings of the trial Court and, according to him, the case was adjourned on numerous dates on the request of learned defence counsel. He further submits that since the trial of the case has commenced so bail cannot be granted to the petitioners at this stage, and relied upon Muhammad Sadiq and others v. The State 1980 SCM R 203, Akhtar Abbas v. The State PLD 1982 SC 424, Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 and Sheroo v. The State 1992 PCr.LJ 1490. Learned counsel further contends that the accused had themselves delayed the trial of the case, so they cannot reap the benefit of such delay in trial and their claim for the grant of bail on the basis of statutory period cannot be accepted.
5. I have heard the learned counsel for the parties and have gone through the record with their assistance. Since the bail is sought on the ground of statutory delay in conclusion of the trial, therefore, merits of the case are not touched. Vide order dated 2-7-1996, the petitioners were declined bail by the learned Additional Sessions Judge, Rawalpindi, on the ground of being hardened criminals. In such a situation, it will be appropriate to refer to the relevant provisions of section 497, Cr.P.C. Which reads as under:------- Section 497, 4th proviso. ---Provided further that the provisions of the third proviso to this subsection shall not apply to a previously convicted offender or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal. "
6. Learned counsel for the petitioners has referred to Zahid Hussain Shah v. The State PLD 1995 SC 49 wherein the petitioners were not having the history of hardened and desperate criminals. But in the instant case, proviso 4 to section 497(1), Cr.P.C. Clearly attracts to the facts of the present case and the judgment referred to by him has also given a passing reference wherein it has been held that the accused could be denied the concession of bail under third proviso to section 497(1), Cr.P.C. If his case was covered by 4th proviso to section 497(1), Cr.P.C. The judgment referred to above was rendered in a case where 3rd proviso was considered Vnd 4th proviso to section 497(1), Cr.P.C. Was neither dealt with nor gone into depth. In reply to the arguments advanced by the learned counsel for the complainant, it was observed that the trial Court did not refuse the bail under 4th proviso to section 497(1), Cr.P.C. Therefore, the said provision was not found, attracted in that case. In the present case, the learned trial Judge has refused bail under proviso 4th of the abovesaid provision of Criminal Procedure Code. In my view, the facts of the aforesaid case do not support the contention of the learned counsel for the petitioners as it does not deal with the proposition in hand. Similarly, the judgment relied upon by the learned counsel for the petitioners in a case reported as 1996 PCr.LJ 783, is not applicable to the facts of the present case for the reason that too is based on 3rd proviso and not 4th proviso to section 497(1), Cr.P.C. As the accused in that case remained in jail for six years whereas in the case in hand, only a few months have passed and that too where the delay was caused by taking adjournments on one pretext or the other at the instance of the accused.th
7. The order sheets placed on record reveal that the challan of the case was submitted on 27-9- 1994. On 16-3-1995, the accused requested that the case be kept pending till the Magistrate forwarded their complaint to the trial Court for a joint trial with the State case. On 21-11-1995, the said complaint was received by the trial Court. Thereafter, on 18-2-1996, Aamir, one of the accused, absented himself. On 8-4-1996, copies of the statements recorded under section 161, Cr.P.C. Were delivered to the accused. On 25-4-1996, Taimoor accused, and 9-5-1996 and 3-6-1996, Aamir Yaqoob were not present. On 11-7-1996, the accused were charge-sheeted. From 15-7-1996 to 23- 7-1996, learned counsel for the complainant got adjournment on the ground that he had to go abroad. On 8-9-1996 and 14-9-1996, the case was adjourned on the request of learned defence counsel, although all the material witnesses were present on 14-9-1996 the case was adjourned to 21-9-1996. So in the circumstances, the contention of the learned counsel for the petitioners that the delay in conclusion of the trial was not caused by the petitioners does not appeal to reason. In my opinion, the prosecution was not responsible for the delay of the trial, as is clear from the facts stated above.
8. The petitioners were arrested on 28-5-1994. After the accused were charge-sheeted, they sought numerous adjournments on one pretext or the other. In such a situation, it has been held in 1980 SCM R 203 that when the case is already fixed for trial, it is not appropriate to grant bail to the accused in the peculiar circumstances of the case. Re-grading adjournments sought by the accused, it has been observed in 1982 SCMR 424 that the adjournment sought the defence for one reason or the other and the delay partly attributed to the accused, bail could not be granted on the ground of delay and the petition was dismissed Be that as it may, the petitioners have been delaying the conclusion of the trial in a mala fide manner so as to get bail on the ground of statutory delay. The conduce of the accused is also to be considered at the time of grant of bail or otherwise. In such a situation, reference is made to Sheroo v. The State 1992 PCr.LJ 1490, wherein it has been observed as under:------ "An accused is to be released on bail if trial is not concluded within the statutory period but an aggrieved person/citizen has the fundamental right under the Constitution that if any crime is committed against him/her, the trial must be held in accordance with law. If the holding of the trial is defeated mala fide, dishonestly and fraudulently, then the fundamental right must be protected.
It seems that in the present case, fraud is being played upon the administration of criminal justice."
9. In view of the above discussion, I do not feel inclined to admit the petitioners to bail as they are hardened, desperate criminals and have been involved in numerous cases of murderous assault and violence. Therefore, grant of bail at this stage will not be in the interest of justice especially for the reason when the case is already fixed for trial. However, expeditious and speedy trial is the right of the accused. Therefore, the learned trial Judge is directed to accelerate the trial and conclude it within a period of three month: from today.
The petition for the grant of bail stands dismissed.