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.