' The petitioner alongwith others was involved in a case under section 302/324/34, P.P.C. Registered at Police Station Lower Mall, Lahore vide F.I.R. No,452 of 1995, dated 7-10-1995 for committing the murder of Khawaja Javed Iqbal and Imran alias Munna by making firing from their respective fire- arms. The firing made by the accused was so heavy that 33 crime-empties were recovered from the spot out of which 22 empties matched with the weapons recovered from Shahid Butt, Rashid Butt and Khalid co-accused of the petitioner.
2. The petitioner was admitted to bail by the learned Additional Sessions Judge, Lahore vide his order, dated 22-2-1997 against which a petition (Criminal Miscellaneous No,935-C/B of 1997) for cancellation of bail was moved. The aforesaid petition was accepted vide order, dated 21-3-1997 passed by this Court and the bail granted to the petitioner was cancelled. He, thereafter, applied for bail to the learned trial Judge on statutory ground available to him under proviso 3rd to section 497(1), Cr.P.C. As the period of two years had elapsed, but the trial had not yet concluded. The learned trial Judge vide a detailed order, dated 22-10-1998 dismissed the application with the observation that the petitioner was not entitled to bail as his detention was not continuous. In this respect it was remarked that the petitioner was admitted to bail by another learned Additional Sessions Judge, Lahore on 22-2-1997 but that order was recalled as stated above, by the High Court vide its order, dated 21-3-1997. Secondly it was observed by the learned trial Judge that delay in the conclusion of the trial was also attributable to the petitioner/accused as the case was adjourned at his request for 20 times. It was held that the petitioner was not entitled to bail.
3. The learned counsel for the petitioner has submitted that the petitioner is behind the Bars for the last more than two years and as such he could not be denied the concession of bail available to him under 3rd proviso to section 497(1), Cr.P.C. Even if the case was adjourned at the request of the accused or due to non-availability of his counsel. In this respect reliance was placed on Muhammad Riaz v. The State reported as 1998 PCr.LJ 320 (Supreme Court (AJ&K). Similarly it was submitted that the petitioner could not be termed as hardened and desperate criminal so as to refuse him the bail particularly when the trial had not yet concluded which shall be deemed to be concluded when the statements of all the prosecution witnesses, statement of the accused under section 342, Cr.P.C. And the statements of the defense witnesses, if any, have been recorded. To press this point reliance was placed on Muhammad Siddique v. Muhammad Behram and another reported as 1998 PCr.LJ 358 (Supreme Court (AJ&K).
4. The learned counsel for the State assisted by the learned counsel for the complainant opposed the bail petition on the ground that real object to introduce the 3rd proviso to section 497(1), Cr.P.C.
Was to ensure that criminal trials were not unnecessarily protracted. However, that provision would not be available where for any reason accused or his authorised agent which necessarily includes the Advocate engaged for defence causes delay in the conclusion of the trial. Reliance was placed on Abdur Rashid v. The State reported as 1998 SCM R 897 (Supreme Court of Pakistan).
5. I have considered the foregoing submissions made at the Bar. Suffice it to say that on merits the petitioner was denied bail vide a detailed order passed by this Court on 21-3-1997, which ground still stands to be valid. The only question remains to be decided is whether or not the petitioner is entitled to bail on statutory ground. It should be clearly understood that while deciding any criminal matter, its own facts should be taken into consideration and no hard or fast rule of universal application can be invoked to decide any particular case. Hence each case has to be decided on its own individualistic merits. In the instant case the petitioner and his co-accused acted in desperado manner and resorted to indiscriminate firing to finish one of the deceased, but when the other deceased tried to intervene to restrain them from killing, the latter was also killed brutally. As observed above, the firing was so heavy that 33 crime-empties were recovered by the Police from the spot out of which 22 empties matched with the weapons recovered from the co- accused of the petitioner. Apart from that a report was called for from the learned trial Judge, who has submitted the report in which he has referred to the interim order-sheet of the case showing that as many as 20 adjournments were occasioned on behalf of the petitioner/accused for one reason or the other. Despite of that, the bulk of witnesses of prosecution have been examined and the trial Court has assured that every possible effort would be made to conclude the trial within the shortest possible time.
6. When asked about the present stage of the case, the learned counsel for the complainant submitted that prosecution evidence has since been concluded and that the case is fixed for recording of statement of the accused under section 342, Cr.P.C. Or the defence evidence if any. It was also contended that the petitioner had unsuccessfully gone upto to the Supreme Court of Pakistan against the order, dated 21-3-1997 passed by this Court whereby his bail was cancelled.
As such it was submitted that the petitioner was not entitled to bail particularly when he has made suppression about this fact while filing this petition.
7. The learned counsel for the petitioner has, however, submitted that he had not been given any instructions in respect of dismissal of the petition from the Supreme Court of Pakistan.
8. In view of the foregoing facts, it appears that the petitioner has not approached this Court with clean hands. Even otherwise, the conclusion of the trial is well within sight. Nevertheless, the conclusion of trial still depends upon the behavior of the petitioner and his co-accused as to how they respond to the present stage of the trial. In such a situation, I do not find any good reason to grant bail to the petitioner even on statutory ground. This petition is accordingly dismissed.