' This is an application for cancellation of bail granted to the respondent Kabir Ahmad by the learned Additional Sessions Judge, Lahore vide order, dated 16-12-1998.
2. Briefly stated the facts are that the accused/respondent Kabir Ahmad along with others stands charged under section 302/ 109/34, P.P.C., vide F.I.R. No,196, dated 10-10-1996, registered at Police Station Batapur, Lahore, for the intentional murder of Muhammad Sharif father of Muhammad Idrees complainant.
3. The accused/respondent Kabir Ahmad applied for post arrest bail which was dismissed by the learned Additional Sessions Judge, Lahore vide order, dated 22-4-1997. He then applied for post arrest bail before the High Court which was also dismissed vide order, dated 9-9-1997. He then applied for post-arrest bail in the Supreme Court of Pakistan but met the same fate, as is evident from order, dated 27-1-1998. Lastly, he applied for bail on statutory ground which relief has been granted to him vide order, dated 16-12-1998.
4. Feeling aggrieved of the said order, dated 16-12-1998, he has approached this Court for recalling the said order.
5. Arguments have been heard and record perused.
6. Contention of learned counsel for the complainant/petitioner is that the accused/ respondent was arrested on 2-11-1996 and has been released on bail on 16-12-1998, which prima facie shows that he has been released on bail after expiry of statutory period of two years. However, factually he could not be released on statutory ground as he has been responsible for seeking adjournments from 13-5-1998 till 16-12-1998, during 'which period the case has been adjourned 'for one date of hearing to another date of hearing. While elaborating his contention, he submitted that the case was fixed for summoning the accused on 30-5-1998, 12-6-1998 and finally the accused appeared on 25-6-1998. The matter did not proceed as copies under section 265-C, Cr.P.C., were not available on record. The matter was adjourned to 10-7-1998. From 10-7-1998, the matter was adjourned to 27-7-1998, 31-7-1998 and finally on 7-9-1998 when the copies were delivered to the accused. Thereafter, the matter was adjourned to 12-9-1998 when the Presiding Officer was on leave. Accordingly, the matter was adjourned to 22-9-1998. On this date, learned counsel for the accused/ respondent withdrew his Wakalatnama, as such the case could not proceed and had to be adjourned to 2-10-1998. On this date, the accused/respondent moved an application for the transfer of the case to the Court of Special Judge, Suppression of Terrorist Activities and accordingly the case was transferred to the said Court where it was received on 5-10-1998 and thereafter, the matter was adjourned to 17-10-1998. Again on the said date, an application for transfer of case was moved and the matter had to be adjourned to 24-10-1998, 29-10-1998, 30-10- 1998 and 3-11-1998 when the Presiding Officer was on leave. However, on 6-11-1998 the case was transferred. The matter was again referred to the ordinary Court and thereafter, the case was entrusted to the learned Additional Sessions Judge where the case did not proceed on 25-111998 on account of absence .Of one of the accused Ghulam Yaseen. The' matter was adjourned to 26-11- 1998, 4-12-1998 and 16-12-1998 when the accused/respondent was released on bail on statutory ground. His contention is that as some of the dates had been taken by the accused/respondent or on his behalf, so the case could not proceed and the said period is to be excluded while computing statutory period as required under third proviso to section 497, Cr.P.C. He submitted that if the period of adjournments obtained by the accused/respondent is calculated, then it would be seen that he had not completed statutory period of two years and consequently, could not be released on bail on that score. He further submitted that the learned Additional Sessions Judge had also personal interest in the case as he entered into an agreement to sell with one Abdul Majeed alias Bhalla son of Wazir Ali who is father of the wife of the accused/respondent Kabir Ahmad, that one of the witnesses to that agreement is Siddique who is father of Azeem, a principal accused in this case, that the third witness of the said agreement Ghulam Yaseen is also nominated accused in the case in hand. He, thus, submitted that keeping in view the facts stated above, it is clear that the impugned order has been passed with ulterior motive. He has further submitted that under similar circumstances, relief of bail has been refused and reliet). Upon Abdul Rashid v. State (1998 SCM R 897). Afaaq Anjam and others v. The State (1997 PCr.0 1344) (Shariat Court (AJ&K) and Shahbaz and another v. The State (199c PCr.LJ 1682).
7. In rebuttal, the impugned order has been supported by learned counsel for the accused/respondent. His stand has further been corroborated by the learned State counsel. It is further submitted by learned counsel for the accused/respondent that as accused / respondent was arrested on 2-11-1996 and trial could not be started that to talk of its conclusion till 16-12-1998, so the learned trial Court was justified in releasing the accused/respondent on bail by invoking the provisions of third proviso to section 497, Cr.P.C. He, however, submitted that adjournments highlighted by learned, counsel for the complainant/petitioner do not affect the case of the accused/respondent as the said adjournments were not obtained with any mala fide intention. He submitted that initial adjournments were granted for summoning the accused whereas some of the adjournments were granted as copies of statements of witnesses were not ready for delivery to the accused and lastly adjournments were granted as the accused/respondent had moved an application for the transfer of case to a Court of ordinary jurisdiction. He submitted that even if some of the adjournments have been granted at the instance of the accused/respondent, it does not disentitle him to the relief of bail which would have accrued to him under third proviso to section 497, Cr.P.C. He submitted that the accused under third proviso to subsection (1) of section 497, Cr.P.C., is entitled to bail as a matter of right if the statutory period mentioned either in clause
(a) or clause (b) has expired and trial has not been concluded and relied upon Sher Ali alias Sheri v. The State (1998 SCM R 190) and Abdul Hameed v. The State (1999 M LD 1333). He further submitted that allegations regarding execution of agreement to sell, dated 2-1-1999 between the learned Additional Sessions Judge and Abdul Majeed alias Bhalla are absolutely false and fabricated as none of the persons mentioned in the said agreement own this fact, as is evident from their affidavits which they have produced in Court. He further contended that all the three persons are present in Court to certify their affidavits.
8. The accused/respondent stands charged vide F.I.R. Referred above for the commission of murder of Muhammad Sharif father of the complainant. He was arrested on 2-11-1996 and has been released on bail by the learned Additional Sessions Judge on 16-12-1998. A perusal of the order sheet produced by learned counsel for the complainant/petitioner reveals that the case was received in the Court of learned Special Judge Suppression of Terrorist Activities on 13-5-1998, when the accused were summoned for 3-5-1998. On the said date some of the accused were not in attendance, hence the matter had to be adjourned to 12-6-1998. The accused/respondent requested for adjournment on 12 6 1998 as well as 25-6-1998 for counsel, as such the matter was adjourned to 10-7-1998. On 10-7-1998, the case could not proceed as copies of the relevant documents had not been available on record. Accordingly, the case was adjourned to 27-7-1998.
The case did not proceed on the said date as copies were not still complete and consequently S.H.O./I.O. Was summoned for the next date of hearing and was directed to place copies on record.
The matter was then adjourned to 31-7-1998. The case also did not proceed on the said date as neither the S.H.O./I.O. Was present nor copies had been placed on record. The matter was then adjourned to 7-9-1998. Again on 7-9-1998, the case did not proceed as documents were still not complete and the accused/respondent moved an application under section 265-C, Cr.P.C. The matter was then adjourned to 12-9-1998. On the said date, as the Presiding Officer was on leave, so the matter was adjourned to 22-9-1998. On the said date, Mr. Abdur Razzaq, Advocate, for the accused withdrew his Wakalatnama in respect of accused/respondent Kabir Ahmad, as such the case could not proceed and had to be adjourned to 2-10-1998. The case again did not proceed on 2-10-1998 as the cases had been transferred to the Court of Mr. Muhammad Ashraf Bhatti, Special Judge, Suppression of Terrorist Activities under the order of the High Court and the accused were directed to appear in the said Court on 5-10-1998. The case was received in the said Court on 5-10- 1998 and was adjourned to 17-10-1998 for framing of charge. On 17-10-1998, an application was moved on behalf of the accused that the case was not triable by the Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975 and as such the matter was adjourned to 24-10-1998. On 24-10-1998 the matter was again adjourned on the request of the parties to 29- 10-1998 and similarly the case was adjourned from 29-10-1998 to 3-11-1998 and to 6-11-1998 and finally the accused/respondent was released on bail on 16-12-1998. A perusal of all the order sheets reveals that all the adjournments have not been sought either by the accused/respondent or on his behalf and most of the adjournments have been sought on legal score. Thus, the accused/respondent cannot be held solely responsible for the adjournments referred above.
9. According to third proviso to section 497(1), Cr.P.C., an accused is entitled to the relief of bail on statutory ground if period mentioned either in clause (a) or clause (b) has expired and trial has not concluded. Admittedly, the accused/.I respondent was arrested on 2-11-1996 and has been released on bail on 16-12-1998. He was released under the third proviso to section 497(1), Cr.P.C.
Even the charge had not been framed till then what to talk of the finalization of the trial. Thus, even if a few adjournments had been obtained by the accused/respondent, it will not make any difference as out of the entire period of two years most of the adjournments have been sought by the prosecution.
10. It may also be mentioned here that beside the statutory ground, it was also pleaded by learned counsel for the complainant/petitioner that the impugned order is tainted with mala fide as the learned Additional Sessions had entered into an agreement with the father of the accused/respondent as well as other persons who are directly related to the accused involved in this case. The said allegation has been controverted by learned counsel for the accused/respondent. The so-called vendee and marginal witnesses of the agreement to sell, dated 2-1-1999 also appeared in Court and submitted their affidavits to controvert the allegation leveled against the learned Additional Sessions Judge. Their statements have also been recorded on separate sheets wherein they have denied the factum of entering into the agreement or attesting the said agreement to sell in the capacity of marginal witnesses. They have also testified their affidavits in support of their statements recorded in Court.
11. It may also be mentioned here that the complainant/petitioner has sought the cancellation of bail but has not alleged that having been released on bail the accused/respondent has misused the said concession. This silence on his part shows that the accused/respondent has not misused the concession of bail having been granted to him by the learned trial Court.
12. The upshot of the above discussion is that the impugned order has been passed in accordance with law and there is no force in this petition which is accordingly dismissed.