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Petitioner: MUHAMMAD ARSHAD VS Respondent: StateHonorable Justice Shahid Hameed DarAftab Hussain Bhatti
2011 M L D 1888 [Lahore] Before Shahid Hameed Dar, J MUHAMMAD ARSHAD---Petitioner Versus THE STATE and another---Respondents
Criminal Miscellaneous No. 6529-B of 2011, decided on 1st July, 2011.
Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 337-F(v), 452 & 34---Qatl-e-amd, attempt to commit qatl-e-amd causing Hashimah and house-trespass---Bail, refusal of---Dangerous and hardened criminal---Scope---Complainant on a dozen occasions, appeared before the Trial Court along with three or four private witnesses for their examination, but their evidence could not be recorded by the Trial Court only due to non-availability of defence counsel---Detention/incarceration of accused since 10-5-2008 could be an important circumstance, but the way the trial had been handled by him or by the defence counsel, had left much to be desired---Miseries of the complainant, could not be gauged by any measure as to how he would preserve the prosecution witnesses under his wings for years so as to make sure that their statements were recorded by the Trial Court before they were done any damage---Terms used in the exceptional clause of fifth proviso of S.497, Cr.P.C., the hardened, desperate or dangerous criminal, could not be interpreted or understood independent of the mode of the occurrence or the role played by accused during the occurrence---If an accused did not think twice before he committed a gruesome or a heinous crime like offence of murder, he had to be dubbed as a dangerous or a hardened criminal, within the meaning of exceptional clause to the fifth proviso of S.497, Cr.P.C.---Case of accused fell in the said category; his bail application was dismissed, in circumstances. Aftab Hussain Bhatti for Petitioner. Rana Tasawar Ali Khan, Deputy Prosecutor-General Punjab. Malik Nisar Ahmad Khokhar for the Complainant. Ghulam Ali A.S.-I. with record.
ORDER SHAHID HAMEED DAR, J.---Muhammad Arshad seeks bail after arrest in case F.I.R. No.212 of 2008 dated 28-4-2008, under sections 302, 324, 337-F(v), 452, 34, P.P.C, registered at Police Station Lundian Wala, District Faisalabad, on the complaint of Zulfiqar. 2. This is second post arrest bail application of the petitioner which has been moved on the sole ground of expiry of statutory period. First bail application of the petitioner had been dismissed on merits by this Court on 19-8-2009. 3. Learned counsel for the petitioner submits that the petitioner was arrested on 10-5-2008, he was charge sheeted on 7-5-2009 and the trial has not concluded so far; the delay in conclusion of the trial cannot be attributed to the petitioner in any manner who is not a hardened, desperate or a dangerous criminal; the petitioner has earned a statutory right to be admitted to post arrest bail so he may be set at liberty. 4. On the other hand, learned Deputy Prosecutor-General Punjab assisted by learned counsel for the complainant submits that the learned trial court while dismissing the post arrest bail application of the petitioner on 24-5-2011 has observed that the delay in conclusion of the trial had been occasioned either by the accused or the persons acting on his behalf; the complainant along with all the private witnesses had repeatedly appeared before the learned trial court for recording their evidence but the objective could not be achieved because of non-availability of the learned defence counsel; the mode of the occurrence and the way the accused-petitioner behaved during the occurrence renders him a hardened and a dangerous criminal. 5. After having heard learned counsel for the parties and perused the record, I find that the complainant of this case, almost on a dozen occasions, appeared before the learned trial court, along with three or four private witnesses for their examination but they could not be recorded by the trial court only due to non-availability of the learned defence counsel. The detention/incarceration of the accused-petitioner since 10-5-2008 may be an important circumstance but, the way the trial has been handled by him or by the learned defence counsel has left much to be desired. It is not a matter of playing with the digits or solving the questions of mathematics, like addition or subtraction of certain amounts, as is the line of argument of the learned counsel for the petitioner that the total adjournments got by the petitioner due to non availability of the defence counsel may be added up and then deducted from the total period of imprisonment of the petitioner, so, as to conclude, whether or not the end-up period of imprisonment exceeded two years, so as to look into the reasonableness of the prayer of the accused- petitioner for grant of bail. The ends of justice may not be defeated by the arithmetic calculations. The miseries of the complainant cannot be gauged by any measure as to how he would preserve the prosecution witnesses under his wings for years so as to make sure that their statements are recorded by the learned trial court before they are done any damage. I have gone through all the interlocutory orders, a copy whereof has been produced by the learned counsel for the petitioner and find it a matter of concern, as to how the learned trial court had readily acceded to a number of requests for adjournment on behalf of the accused while the complainant and his co-witnesses simply looked at the court haplessly. The petitioner had been declared the principal perpetrator by this court while declining his earlier bail plea. The term used in the exceptional clause of 5th proviso, the hardened, desperate or dangerous criminal cannot be interpreted or understood independent of the mode of the occurrence or the role played by the accused during the occurrence. If an accused does not think twice before he commits a gruesome or a heinous crime, like the offence of murder he has to be dubbed as a dangerous or a hardened criminal, within the meaning of exceptional clause to the 5th proviso of section 497 of Code of Criminal Procedure. To the mind of this Court, the petitioner's case falls in the said category. Therefore, I am not inclined to accept this application, which is dismissed accordingly. 6. Before parting with this order, the learned trial court is directed to adopt all possible/essential measures under the law to ensure early conclusion of the trial, preferably within five months from the date of receipt of the order of this Court. H.B.T./M-258/L Bail refused.