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Criminal Appeal No. 46 of 1988, decided on 16th January, 1989.

---- S. 497 Penal Code (XLV of 1860), Ss. 302, 307 & 498/149 Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974), Ss.5 & 15 Bail, grant of Three bail applications already rejected Appeal before Supreme Court against refusal of bail also rejected No new ground made out Accused alongwith others resorting to indiscriminate firing resulting in death of one person and injuries to three witnesses Accused member of unlawful assembly acting in furtherance of common object Reasonable grounds existing to believe accused to be connected with crime No ground made out for review of previous findings of this Court and those of the Supreme Court Bail refused in circumstances.

S. 497 Penal Code (XLV of 1860), Ss. 302, 307 & 498/149 Azad Jammu and Kashmir Islamic Penal Law Enforcement Act (IX of 1974), Ss.5 & 15 Bail, grant of Vicarious liability Discrepancies in statements of witnesses and suppression of certain facts were not of such a nature as to make the prosecution version highly doubtful Suppression of fact that empties were found from inside the place where complainant party was present already considered and rejected by Supreme Court Even if no specific injury was ascribed to accused Accused participated in indiscriminate firing at complainant party Accused, held, had incurred constructive liability and sufficient ground was not provided for bailing him out in circumstances.

-- S. 497 Penal Code (XLV of 1860), Ss.302, 307 & 498/149 Azad Jammu and Kashmir Islamic Penal Law Enforcement Act (IX of 1974), Ss.5 & 15 Bail, grant of Delay in conclusion of trial Prosecution not responsible for delay Prosecution witnesses to be summoned through coercive methods by Trial Court Ground already considered in previous bail petitions Delay per se, held, was not a ground for grant of bail Bail refused in circumstances.

Riaz Akhtar for Petitioner.

M. Nisar Mirza, Addl. A. G. for the State.

Ch. Muhammad Taj for the Complainant.

This is an application for the release on bail of the petitioner who alongwith 2 other persons is standing trial before the Additional District Criminal Court, Bhimber for the commission of offence under section 5/15, Islamic Penal Laws Enforcement Act read with sections 302/307, 498/ 149, A.P.C. and whose similar request was turned down by the aforesaid Court vide its order, dated 14 91988.

2. I need not state the facts of the case in detail as this exercise has already been done by this Court in 3 previous similar cases decided by it refusing the concession of bail to the petitioner and it would suffice to state that the accusation against the petitioner is that on 6 9 1981 at 8 30 a.m. he alongwith 4 other persons resorted to firing at Said Muhammad Khan, complainant and his companions who were sitting inside the hotel belonging to Feroze Khan, situate near Barbing Check Post as a result of which one Purvaiz son of the complainant lost his life while other three persons, namely, Aurangzeb, Abdur Rauf and Feroze Khan were injured.

3. I have heard the learned counsel for the parties and have also gone through the record of the case. The learned counsel for the petitioner has advanced the following grounds in support of the release of the petitioner on bail:

(i) That the statements of some of the prosecution witnesses that 4 crime empties were recovered from the place where the body of the deceased was lying at the time of occurrence, go to show that the firing from inside the hotel had also been resorted to but the eye witnesses in their statements before the trial Court have deliberately suppressed the above fact of firing having taken place from inside the hotel as well, whereby rendering the case of the prosecution doubtful and that as the benefit of doubt goes to the accused even at the bail stage, the petitioner deserves to be released on bail;

(ii) That there are discrepancies in the evidence of even eye witnesses recorded by the trial Court inasmuch as some of them do not ascribe any fire arm injury having been caused by the petitioner to any of the injured persons while one of them, namely Abdul Rauf, P.W. has ascribed his fire arm injury on his foot, to the petitioner, whereas Feroze, P.W. 911 0 the above injury having been caused by Abdul Rashid;

(iii) That none of the prosecution witnesses corroborates the place from which the petitioner is alleged to have fired the gun shots during the occurrence as shown in the site plan which fact also casts serious doubt on the truthfulness of the prosecution story; and

(iv) That the petitioner is undergoing the hardships and expenses of the prosecution for the last 7 1/2 years on account of the deliberate attempts of the prosecution to delay the conclusion of the trial and that there still remain a large number of prosecution witnesses to be examined by the trial Court which facts are sufficient to release the petitioner on bail.

4. On the other hand, Ch. Muhammad Taj, the learned counsel for the complainant, has vehemently opposed the grant of bail to the petitioner by contending that the petitioner is in the habit of moping unnecessary bail applications and is thus, himself responsible for the delay complained of by him in the disposal of the case as is evident from the fact that his previous 3 attempts in the Shariat Court and one in the Supreme Court for obtaining his release on bail have failed. He has further contended that the grounds urged in this application and supported by the learned counsel for the petitioner in his arguments for the grant of bail to the petitioner, were also raised in the previous bail applications of the petitioner but the same were not found sufficient by the aforesaid Courts for bailing him out, and as such he is now debarred from agitating the same grounds in this application which do not contain any new ground entitling him to the concession of bail.

5. I have given my due consideration to the above contentions of the learned counsel for the parties in the light of the facts and circumstances of the case and law applicable to it. It is undisputed that this Court has already rejected the three previous requests of the petitioner for his release on bail and an appeal before the Supreme Court against one of such refusals was also not successful. A perusal of our previous judgments would show that the learned counsel for the petitioner has not been able to make out any new ground on the basis of which the petitioner becomes entitled to be freed on bail notwithstanding the previous rejection of his such like requests. This Court, while rejecting the previous pleas of the petitioner for his bail, has held that prima facie, there exist reasonable grounds for believing him to be connected with the commission of offences in which bail under law, is prohibited as there is evidence on the record to show that he in furtherance of the common object of the unlawful assembly of committing the offence of murder, had joined the other accused in indiscriminate firing at the complainant party which resulted in the loss of life of one person and injuries to 3 others by reason of which, all the accused are liable for the said offence on an account of their vicarious liability notwithstanding the fact that it was not possible to determine as to who, among them, was actually responsible for the death of the deceased. The Supreme Court in its judgment, dated 9 3 1982 refusing bail to the petitioner has also held that there existed sufficient material on record clearly connecting the petitioner with the crime. Unless the above finding is altered anti it is held that there do not exist reasonable grounds for believing the petitioner to have committed the offence with which he is charged, it is not now possible for this Court to accede to the request of the petitioner for his freedom on bail. But none of the grounds alleged by the learned counsel for the petitioner in support of entitlement of the petitioner to the concession of bail, is such on the basis of which the previous finding referred to above could be reviewed and petitioner let out on bail.

6. The learned counsel for the petitioner has contended that there exist certain discrepancies in the statements of the P.Ws. recorded before the trial Court and that some of them have also suppressed certain admitted facts which make the case of the prosecution highly doubtful, as a result of which the petitioner becomes entitled to the grant of bail because the benefit of doubt can be given to an accused person at the bail stage as well. But the discrepancies and suppression of facts pointed out by the learned counsel for the petitioner are no: of such a nature on the basis of which it could be said that the prosecution version has, in fact, become highly doubtful. The mere fact that some of the witnesses are alleged to have suppressed the fact of certain empty cartridges having been found from inside the hotel, does not render the whole case of the prosecution suspicious, thereby entitling the petitioner to the grant of bail. The Supreme Court has already refused bail to the petitioner by rejecting the ground that because of the recovery of some empty cartridges from inside the hotel it is established that the complainant party had also resorted to firing on the accused, thereby making it a case of further inquiry. When the very fact of recovery of certain empty cartridges from inside the hotel did not furnish any ground for releasing the petitioner on bail, I fail to see as to how suppression by some prosecution witnesses of the fact of empty cartridges having been found from inside the hotel could be made the basis of release of the petitioner on bail. Similarly, the discrepancy pointed out in the evidence of P.Ws. is of little significance and it would be too much to expect the release of the petitioner on bail on its basis. It is contended that while some witnesses do not ascribe any specific injury to the petitioner to have been caused by him to any injured person; one of them namely, Abdul Rauf accused the petitioner of having caused fire arm injury on his foot. As said earlier, the bail to the petitioner could not be granted previously on the ground that he was found, prima facie, to have participated is indiscriminating firing at the complainant party and thus, incurred constructive liability for the offence of murder and attempt to murder. The above minor discrepancy does trot dislodge the above conclusion already arrived at by this Court. Likewise, the contention of the learned counsel for the petitioner that the eye witnesses do not corroborate the place from where the petitioner is shown to have fired at the complainant party at the time of occurrence in the site plan, has little merit in it as the above contention cannot be held to provide sufficient ground for bailing out the petitioner.

7. The learned counsel for the petitioner has also advanced the delay being caused in the conclusion of the trial of the case as one of the grounds for granting him bail but in my view, it is not a sufficient ground. This ground was also raised in the previous bail applications of the petitioner but did not find favour with this Court, on the ground that firstly, delay in the proceedings of the case is not, per se, a ground for the grant of bail and, secondly, there was no fault on the part of the prosecution for such delay. The above observation still holds good as the prosecution cannot be blamed for the delay so far occurred in the conclusion of the trial of the case. It appears that the delay in question has taken place due to the non appearance of the prosecution witnesses before the trial Court which can ensure their appearance by pressing into service its powers given to it under the Code of Criminal Procedure. It appears that the trial Court is doing its duty in this respect as the witnesses are summoned even through non bailable warrants of arrest. However, the fact remains that inordinate delay has taken place in the disposal of this case in view of which the trial Court should redouble its efforts to finalise the disposal of this case as expeditiously as possible. The trial Court shall in future send monthly report with regard to the progress made in the proceedings of the case. With the above observations, this application is dismissed.

S.A./350/HCA

Bail refused.

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