Cr.B.A.No. 804 of 2012.
For Hearing.
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28.01.2013. Mr.Noor Hassan Malik advocate for the applicant.
Mr.AbdulRehmanKolachi APG.
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SALAHUDDIN PANHWAR, J- Applicant Abdul Razak
seeks post arrest bail in Crime No.136/2011 Police Station, Kandhra,
registered for offences under Section 302, 324, 452, 148, 149, PPC.
2. It
is alleged that on 12.12.2011 at 4.30 am applicant alongwith
other co-accused persons intruded in the house of complainant, where c-accused
Muhammad Nawaz caused murder of deceased Daim Ali; whereas the applicant caused fire arm injury to
injured Ali Abad. Applicant alongwith other accused
persons were sent-up for trial. The applicant preferred his bail application
before the trial Court, the same was dismissed then he preferred bail application
before this Court, which was also dismissed by order dated 17.05.2012 with
directions to the trial Court to conclude the trial within a period of four
months.
3. Learned
counsel for the applicant has inter alia contended
that inspite of directions, the trial Court has
failed to conclude the trial; no specific allegation regarding injury to the
deceased, was attributed to the applicant;
alleged injury is punishable for 5 years and same falls within the Prohibitory
Clause of Sub-section (1) of Section 497, Cr.P.C; the
question of vicarious liability can be
decided by the trial Court; delay in conclusion of the trial, is not on the
part of applicant, thus, he is entitled for post arrest bail. He has relied upon the case
law reported as Ashok v The State (1997 SCMR 436),
Muhammad Aslam v The State (1999 SCMR 2147) and KhadimHussain Shah v The State (2010 MLD 377).
4. Conversely,
learned APG for the State has argued that by order dated 17.5.2012 bail
application was dismissed on merits and the applicant has not approached before
the Honourable Supreme Court, therefore this Court
cannot consider the merits of the case; regarding direction, one accused has
not engaged counsel, therefore the trial Court in its order has very clearly
mentioned the details of the delay in conclusion of the trial.
5. Heard
learned counsel for the parties and perused the record.
6. After
meticulous examination of the record and the case law cited by the learned counsel, it is manifest
that bail application of the present applicant was dismissed by this Court vide
order dated 17.5.2012 on merits and the trial Court was directed to expedite
the trial and dispose of the matter within a period of four months; admittedly,
the applicant has not approached before the Honourable
Supreme Court, therefore, this court can not cnsider
the merits of the case as same were already discussed and decided in ealier order passed by this court: regarding the directions
of this court vide order dated 17.5.2012, it is manifest that no where it is mentioned that that the
applicant will be at liberty to file fresh bail application and the trial Court
or this Court will consider the merits as fresh if the trial Court fails to
conclude the trial, therefore the plea of applicant’s counsel that this direction
amounts to repeat the bail application,
is devoid of merits; morever the
direction issued by any Court, will not
bypass the statutory right and in the instant case, the trial Court has given
clear picture that one co-accused has not engaged the counsel, therefore, case is not completed
even otherwise the statutory provision is available with certain condition that
a person after completion of reqired period, can move
bail application, on the statutory ground, but, such period has not been
completed, therefore, this application is devoid of merits and the applicant is
not entitled for bail.
7. Regarding
the cases referd by defence
counsel; it is suffice to say that it is settled proposition of law that in
criminal administration of justice every case is to be decided on its own pecular circumstances and merits, however, I have examined
the case of Ashok, Muhammad Aslam
and Khadim Hussain shah , and without any hesitation to say that same relates
to the different facts and circumstances, therfore
ratio of the said cases is not aplicable in instant
case.
JUDGE
Akber.