2018 PLP 101 (YLRN)

AFTAB AHMED GORAR, J.

The applicant Muhammad Adil @ Topi son of Muhammad Usman has sought bail under section 497 Cr.P.C. in Crime No. 218 of 2010 registered with Police Station Baloch Colony, Karachi under section 302/324/392/34, P.P.C. Earlier, by an order dated 23.12.2016 bail has been declined by the learned trial court hence the instant bail application has been pressed by learned counsel on sole ground of statutory delay in trial.

2. Perusal of record reveals that at the time of dismissal of the Criminal Bail Application No.292/2013 filed by the main accused, this court has given clear directions to the trial court to proceed with the matter expeditiously. It is very unfortunate that the impugned order dated 23.12.2016 passed by XIth Additional Sessions Judge, Karachi South in Sessions Case No. 345/2010 does not reflect sufficient reason or plausible cause for not making compliance of order of this Court i.e. to decide the case within three months, which shows that the impugned order has been passed in a slipshod and sketchy manner as the trial judge did not mention any reason of not proceeding with the case or non-compliance of order of this Court passed earlier on 10.06.2014 in Criminal Bail Application No. 292 of 2013.

3. I have heard the learned counsel for applicant, learned Deputy Prosecutor General, Sindh and perused the record.

4. Learned counsel for the applicant inter alia contended that applicant has falsely been implicated in this case with mala fide intention and ulterior motive as his name does not find place in the FIR. Learned counsel submitted that in the bail matter no deeper appreciation is to be considered in grant or rejection of the bail. To support his contentions, the learned counsel for the applicant contended that the applicant/accused was arrested on 30.8.2011 and since then he is continuously in confinement, therefore, in view of newly added proviso of section 497, Cr.P.C. he is entitled for bail. It is submitted that after framing of the charge five PWs were examined by the prosecution. It is next contended that certified copies of diary sheets, annexed with the application, show that delay in trial is not attributable to the applicant. Learned counsel categorically stated that in view of plethora of rulings of superior courts, the applicant/accused is entitled for bail on the ground of statutory delay in trial. To support such contentions reliance is being placed on the cases reported in Shabbir v. The State (2012 SCMR 354), Abdullah v. The State (1985 SCMR 1509), Gul Hassan Penhyar v. State (1997 SCMR 390), Muhammad Aslam v. The State (1999 SCMR 2147), Muhammad Ashraf Khan and others v. Muhammad Khan and others (2012 SCMR 356).

5. On the other hand, the learned Deputy Prosecutor General, Sindh conceded the bail to the applicant on the ground of statutory delay in trial and admitted that trial could not be commenced since long period.

6. Learned counsel representing the complainant while opposing the grant of bail to the applicant on statutory delay in trial, contended that statutory period shall be counted running from framing of the charge when the delay caused and not before the charge. However he did not produce any judgment delivered by any superior Court to support his contention.

7. It is an admitted fact that contents of the FIR do not reveal name of the applicant in commission of the offence of committing robbery of cash and gold ornaments by inflicting injury to the complainant and so also causing murder of complainant's son namely Danish Furqan. The alleged incident was taken place on 02.06.2010 and the applicant was arrested on 30.08.2011 and since then he is behind the bars. Perusal of diary sheets reflects that some adjournments have been sought by the defence counsel but those are not sufficient to show that the applicant was/is responsible for inordinate delay in disposal of the case.

8. In our country liberty of individual has been guaranteed by the Constitution beside the fact that speedy trial is inalienable right of every accused person, therefore, even if the provision of section 497, Cr.P.C. in ordinary course is not applicable, the broader principle of the same can be pressed into service in hardship cases to provide relief to a deserving accused person incarcerated in jail for a shockingly long period. An accused person cannot be left at the mercy of the prosecution to rot in jail for an indefinite period. The delay in the conclusion of trial of detained prisoners cannot be lightly ignored provided it was not caused due to any act or omission of accused. The law laid down by the Apex Court is fully applicable to the circumstances of the case in hand. In the case of Shabeer v. The State reported in 2012 SCMR 354, the Hon'ble Supreme Court with regard to delay in conclusion of trial held that "Accused was arrested on 14.11.2007 and since then he had been in the custody despite framing of charge on 29.07.2008 and no proceedings had been concluded nor there was any reasonable possibility of conclusion of trial in near future, bail was allowed". In the case of Zahid Hussain Shah v. The State reported in PLD 1995 Supreme Court 49, the Hon'ble Supreme Court held that "the bail under the 3rd proviso to section 497(1), Cr.P.C. can be refused to an accused by the Court only on the ground that the delay in the conclusion of the trial had occasioned on account of any act or omission of the accused or any other person acting on his behalf and the bail under the 3rd proviso to section 497(1), Cr.P.C. can also be refused by the Court if the case of the accused fell under the 4th proviso to section 497(1), Cr.P.C. In all other cases the Court must grant bail." In the case of Danish Ahmed v. The State reported as 2012 MLD 1180 (Sindh), a Division Bench of this Court held that prosecution had not established any delay in concluding the trial was attributable to the accused hence the accused was enlarged on bail with direction to the Court to conclude within four months. In another case of Ziauddin v. The State reported as PLD 2012 Sindh 147, this Court has held that "Trial could not be said to have concluded when three prosecution witnesses were yet to be examined and in such circumstances concession of bail on grounds of statutory delay could not be denied to the accused." Bail to the accused on the ground of delay in conclusion of the trial was allowed and he was admitted to bail. In the same situation dictum as laid down by this Court is that bail on the ground of statutory delay in conclusion of the trial can be refused to the accused by the Court on the grounds that if the delay in conclusion of trial had occasioned on account of an act or omission on the part of the accused or any person acting on his behalf, or if accused was a previously convicted offender for an offence punishable with death or imprisonment for life or, if accused in the opinion of the Court, was a hardened, desperate or dangerous criminal or was accused of an act of terrorism punishable with death or imprisonment for life. The court further observed that when statement of one of the prosecution witness was yet to be recorded, it could not be said that the trial had been concluded. Trial would be deemed to be concluded only when the statements of all the prosecution witnesses had been recorded. Similar observation is made in an identical case decided by the learned judge of this Court i.e. Muhammad Ibrahim v. The State reported in 2012 MLD 1318 (Sindh).

9. In view of above, more particularly in light of the case law mentioned above, the applicant is admitted to bail subject to his furnishing surety in the sum of Rs. 2,00,000/- (Rupees two lacs only) and P.R. Bond in the like amount to the satisfaction of the trial court. The learned trial court is however, directed to expedite the trial, preferably within a period of three months. WA/M-138/Sindh Bail granted.