Petitioner Shamsher Ali son of Muhammad Hayat seeks after arrest bail in case F.I.R. No.250 dated 20-9-1992 under sections 302, 324, 148, 149 and 109, P.P.C. Registered with Police Station Sillanwali, District Sargodha.
2. Brief, facts of the case are that the petitioner is one of the 15 accused nominated in the F.I.R. Out of them 13 were arrested and they faced trial before the learned Additional Sessions Judge, Bhalwal, District Sargodha, while the petitioner and other co---accused Ihsan Ullah were declared proclaimed offenders. Out of 13 accused, who faced the trial 7 were convicted and 6 were acquitted. The 7 convicted accused filed Criminal Appeals Nos.456 and 459 1993 challenging their conviction and sentence. The said appeals were allowed and they were acquitted by this Court vide judgment dated 17-12-1997. The complainant has challenged the acquittal of the accused before the Hon'ble Supreme Court of Pakistan. Admittedly, leave to appeal has been granted and record of the case has been requisitioned there.
Shamsher Ali petitioner was arrested on 22-4-2001 and challan against him was submitted on 25- 4-2001. He was declined after arrest bail on merits by this Court vide order dated 10-5-2002 passed in Criminal Miscellaneous No.2111-B of 2002. He repeated his petition before the learned trial Court for grant of bail on the ground of delay in conclusion of the trial. The said relief was also declined by the learned Sessions Judge, Sargodha vide order dated 11-12-2002. Hence this petition.
3. In support of this petition, learned counsel for the petitioner contends that the petitioner was arrested on 22-4-2001 and almost two years have passed but the trial is not in sight in near future in absence of record which has been requisitioned by the Apex Court and the role attributed to him is only of ineffective firing; his role is similar to that of Muhammad Khan accused who was acquitted. The petitioner cannot be kept in jail for an indefinite period because there is case-law that no person shall suffer for act of the Court. Reliance in this regard has been placed on "Fida Hussain v. The State and others" (PLD 2002 SC 46).
4. Conversely, the petition has been opposed by learned counsel for the complainant and for the State. Learned counsel for the complainant has supplemented his contentions by arguing that the satutory period is no more part of the statute and the petitioner himself is responsible for delay in conclusion of the trial as he remained absconder for a long period of more than nine years.
Reliance in this regard has been placed on "Sher Ali alias Sheri v. The State" (1998 SCM R 190).
5. Heard. Record perused.
6. Petitioner was disallowed bail on merits by this Court on 10-5-2002. The occurrence took place on 20-9-1992 and he remained fugitive from law for about 9 years and was arrested on 22-4-2001.
Now, he seeks his bail mainly on the ground of delay in conclusion of the trial and the argument of learned counsel for the petitioner that trial cannot be concluded as the record has been requisitioned by the Hon'ble Supreme Court is no ground for grant of bail. In the above cited case i.e. "Sher Ali alias Sheri v. The State", (1998 SCM R 190) the Hon'ble Supreme Court of Pakistan in para.14 of the said judgment observed as under:-- "In our view, simpliciter an act of abscondence on the part of an accuses person will not disentitle him to claim bail on the ground of statutory delay, which right accrues to him after he has been arrested and the statutory period mentioned in clause (a) or clause (b) or aforementioned third proviso, as the case may be, has expired. However, it the act of abscondence has contributes towards the delay of the trial, in that event, an accused person would not be entitled to seek bail on the ground of statutory delay. In the case in hand if the petitioner would not have absconded, he would have been tries with the other co-accused, whose trial was concluded by the learned Additional Sessions Judge on 31-10-1991. Their appeal was disposed of by the High Court on 24-10- 1995. The case against the present petitioner could not be proceeded with as the trial Court could not get the record of the case from the High Court till 2-1-1997. In our view this period of delay is attributable to the petitioner. There would not have been any occasion to summon the above record for proceeding with the trial against the petitioner if he would not have absconded. The petitioner cannot take advantage of his own wrong."
The argument of learned counsel that the petitioner should not suffer for act of the Court is also without basis as the petitioner himself contributed for causing delay in conclusion of trial due to his abscondence. The other limb of the argument of learned counsel for the petitioner that his role is only of ineffective tiring cannot be considered as his bail petition on merits has already been dismissed, therefore, the petition is dismissed being devoid of force.