1984 P Cr (PLP)

(d) Criminal Procedure Code (V of 1898)

S.497--Penal Code (XLV of 1860), S. 302--Bail--Delay in progress of case-- Abscondance of one of accused persons, held, cannot block progress of case qua others--When one accused absconding trial of accused in custody can be commenced and proceedings can be started--Bail granted in circumstances. Raja Qureshi and Amir Ahmad Khan for Petitioner. M.A. Memon, A:A:-G. for the State. Applicants Gala Jan and Badam Khan have applied for bail on the ground that there is delay of more than two years since they have been arrested and so far the trial has not made any headway as such they are entitled to bail as contemplated under section 497, proviso 3 of Cr.P.C. Both these applicants alongwith other five co-accused are being tried for offences under section 302/307/147/148/149/452, P.P.C. Bail plea of both these applicants on merits has been rejected by the High Court vide order dated 4-4-1982. 2. Bail plea is now urged on the ground that both the applicants were arrested on 6-5-1981 and till today over two years have expired and uptil now not even charge has been framed. On this ground bail plea was urged before the learned trial Court and the same has been rejected vide order dated 10-5-1983 and my attention has been drawn td the observations made by the learned Trial Judge in the impugned order which are to the effect that time was consumed by the accused in moving bail application in the High Court, in connection with hearing of which police papers remained in the High Court from time to time and secondly that co-accused Muhammad Yousuf had absconded and could not be arrested in spite of issuance of bailable warrants and thirdly, the Trial Court was lying vacant from 23-2-83 to 3-4-1983 for about two months and the accused persons did not take initiative to have the case transferred td another Court. 3. Proviso 3 of section 497, Cr.P.C. contemplates grant of bail or the ground of delay. It is further provided that in a case in which offence is punishable with death and if trial has not been concluded and the accused has remained in custody for a continuous period exceeding two years, he is entitled to bail. Another requirement is that where the Court is of opinion that the delay in the trial of the accused has beer occasioned by an act or omission of the accused or any other person acting on his behalf then the bail cannot be granted. 4. In the instant case both applicants were arrested on 6-5-1981 and are till today in custody and more than two years have expired. Case diary does not show that on few occasions adjournments were sought or behalf of applicants but even on those dates the case was not ready, and witnesses were not in attendance and even otherwise the case could not be proceeded with. Progress of these dates is specified as under:- On 13-12-1981 A.P.P. was present, defence counsel was out of the country. Accused produced in custody but there is no mention in the diary of that date whether the prosecution witnesses were available in the Court for examination or not? It is stated or that date charge was not framed and the charge has not beer framed even today. On one such other occasion i.e. 4-4-1982 the case was adjourned when accused were present but defence count was not available and even in this diary there is no mention about the presence or availability of the witnesses. Next such date 29-7-1982 when some accused were present but two co-accused were not produced from jail. Defence counsel was not present. G that date case could not proceed because two accused were not produced and secondly, there is no mention whether witness: were available in the Court or not? On 27-9-1982 the case that shows that accused were not produced and there is mention in tr.: diary that defence counsel was not present. On 7-3-83 again accuse were not produced in custody and defence counsel was not present On 3-5-1983 other accused were present in the Court exception one who was absconded. 5. These are six occasions stated above on which it can be said the either the adjournments were sought or the defence counsel were not present and in the circumstances some overt act can be attributed to the accused for contribution of delay. It very clearly appears that on these occasions as mentioned above in any case the trial could not have commenced for the reasons firstly, that charge was not framed and secondly, witnesses were not in attendance and no mention is made in the case diary that an attempt was made to have them served and produced in the Court. 6. The learned Additional Advocate-General has drawn my attention to the, case of Akhtar Abbas v. State P L D 1982 S C 424 in which it is held that intention of the law is not to make calculation of time of delay caused by defence if it appears to the Court that some adjournments have been sought by defence for one reason or the other causing or contributing delay in the progress of the trial. In the reported case accused had sought adjournments on eight occasions and the order sheet relating to these dates indicated that most of the witnesses were available in the Court and the case could have proceeded if the accused had not applied for adjournments. In the instant case the facts are different and distinguishable for the reason that on the occasions mentioned above when the case was adjourned and it is stated that adjournments were sought by the accused it appears from the order sheet that even on those dates the case could not have proceeded because the witnesses were not summoned and were not in attendance of the Court and on some occasions the accused were not produced in custody in the Court. In the circumstances it can be said safely that the present applicants have not contributed to the delay in the progress of the trial. 7. So far the reason assigned by the learned trial Judge that the case could not make progress because accused persons have been making bail applications from time to time in the result whereof the record was in the High Court and consequently the progress was blocked. I do not feel inclined to agree with this proposition for the reason firstly, that record does not show that the witnesses were summoned or were in attendance of the Court and secondly, that if the police papers were in the High Court sincere efforts could have been made by the trial Court to get them back or another set of Police papers could have been got prepared so that the case could have proceeded without delay on that account. Thirdly, the correct legal position is that the law caves statutory right to the accused to apply for bail and pursue that remedy in the trial Court failing which he could apply in the High Court and then in the Supreme Court. If delay is caused on account of this fact that the accused applied for bail and if this delay is counted against the accused then it would not be fair to the accused who has been given statutory, right to apply for bail and in a way it would amount to discouraging hire from pursuing his statutory rights. 8. I also do not feel inclined to agree with the learned trial Judge, that the, Court was lying vacant for about two months and the persons did not try for the transfer of the case because if the Court lying vacant, it is not fault of the accused persons. Those concerned with this responsibility should have seen to it that the case was transferred to another Court where Presiding Officer was available so that no delay was caused in the conduct of case. Lastly I feel it will not be correct to say that in case one accused has absconded progress in the case stands blocked till the absconding accused is arrested. Law provides several steps in the Criminal Procedure Code which can be taken against the absconding accused under section 87/88 and recording of evidence under section 512, Cr.P.C. In such a case, when one accused is absconding the trial of accused who are in custody and are available can be commenced and proceeding can be started. For the facts and reasons mentioned above, I admit both applicants to bail in the sum of Rs.50,000 (Rupees fifty thousand only) with one surety and P.R. bond each in the like amount to the satisfaction of the trial Court. M. Y. H. Bail granted.