P L D 2012 Sindh 218 (PLP)

MUHAMMAD ALI MAZHAR J.

The applicant has applied post arrest bail in Crime No.252 of 2008, Police Station A-section, Khairpur, lodged under section 302, P.P.C.

2. The bail application was moved in the trial Court in Sessions Case No. 643 of 2008 but it was dismissed vide order dated 3-8-2011.

3. Brief facts of the prosecution case are that on 24-11-2008, complainant Dildar Ali Zangejo lodged F.I.R. that his cousin Muhammad Ramzan was a labourer in the date market Khairpur. The complainant, his brothers Balouch Ali and Manthar Ali and cousin Muhammad Ibrahim went to meet him. On the same day, complainant's maternal cousin Muhammad Ibrahim asked them to go with him to the house of his sister Mst: Koonj wife of Abdul Razak Zangejo. They jointly went to meet complainant's cousin Mst. Koonj, At about 8-30 p.m, accused Abdul Razak came in the house with SMG rifle and on seeing all the persons from complainant party became annoyed and fired two shots with his SMG rifle upon his wife Mst. Koonj, which hit her and she fell down. Thereafter, he immediately fired four more shots on complainant's brother Manthar Ali, who also fell down. Then accused screamed that he has murdered his wife Mst. Koonj and Manthar Ali as "KARAS".

4. The learned counsel for the applicant argued that the present bail application has been moved on the ground of hardship and delay. The applicant is behind the bars for more than three years, therefore, in view of amendment made under section 497, Cr.P.C. the applicant is entitled to be released on bail as the trial court has failed to conclude the trial and no delay in the trial can be attributed to the applicant. He further argued that the applicant had earlier moved Cr.B.A. No.156 of 2011 in this court which was disposed of on 14-6-2011, with the directions to move the bail application in the trial court. The bail application was moved but it was dismissed merely on the ground that complainant has also filed a direct complaint against the present applicant and four others in which formal charge has been framed and the complainant and one P.W. have been examined but learned trial court failed to discuss the reasons for delay in the trial. The learned counsel also produced certified copies of case diaries of Cr. Case No.643 of 2008 from 13-12-2008 to 14-8-2011 and argued that from most of the diaries, it is clear that the applicant cannot be held liable or responsible for the delay in the trial. In support of his arguments, the learned counsel relied upon an unreported bail order passed by me in Cr.B.A. No.675 of 2011. "Zameer v. State"

5. Conversely, the learned APG argued that delay in trial cannot be solely attributed to the prosecution and since the applicant is involved in murder case, he does not deserve any leniency. However, he admits that the applicant was arrested on 26-11-2008 and the charge was framed in this case on 25-6-2009 and only the complainant and one prosecution witness have been examined so far.

6. Since the bail application has been moved on the ground that for last more than three years, the applicant is languishing in jail and' the trial court has not been able to conclude the trial, therefore in view of the amendment made under section 497, Cr.P.C, the applicant is entitled to be enlarged on bail. In order to appreciate the contention of the learned counsel for the applicant, I have examined certified copies of case diaries produced by him in Crime No.252 of 2008 (Cr. Case No.643 of 2008). The final challan was submitted in the trial court on 13-12-2008. On the next date R & Ps were received by way of transfer for disposal of aforesaid case in accordance with law. Thereafter, on three dates, accused was not produced by jail authorities and on some dates, applicant was produced but trial court was lying vacant. However, on 25-6-2009, charge was framed and matter was adjourned for 14-7-2009. Thereafter, since 14-7-2009 to 25-9-2010, at least on 15 dates, trial court adjourned the matter. Mostly in the above dates either order for issuing process to the P.Ws. were passed or sometimes complainant was directed to bring all the witnesses in court and on two or three dates it is also mentioned that the applicant was not produced by the jail authorities. Since 19-6-2010 to 13-8-2011, at least for 43 dates, matter was adjourned for various reasons including that custody was not produced, process was repeated on P.Ws. complainant was not present and on few dates adjournment was sought by the applicant's counsel. Though for the purposes of ascertaining the delay in trial, mechanical calculation of the dates is not required but the main reason for the delay and the conduct of the prosecution is to be evaluated and examined in order to arrive at proper conclusion whether the applicant is instrumental to the delay or the prosecution. If the jail authorities failed to produce the UTPs in court for prompt trial or it' the prosecution witnesses are not produced by the prosecution, the accused can not be held responsible to ensure his attendance in court or calling the prosecution witness which is beyond his control but it is the responsibility of the trial court to enforce the production of UTPs as well as prosecution witnesses in court and if any lapse is found on the part of jail authorities or the prosecution, the court is not helpless but it can take all appropriate measures provided under .the Criminal Procedure Code as well as the guidelines provided under the National Judicial Policy. In order to cope with such situation, I have held in Cr.B.A. No.675 of 2011 (Zamir v. State) as under:-- "It is quite astonishing to note that delay caused due to non-production of accused persons including applicant by jail authorities, but the delay of all 24 dates have been attributed to the applicant who has no control or say over the Jail Authorities either to produce him or not to produce him in the court. It is the responsibility of jail authorities to produce UTP(s) in the court without any failure on their part. Likewise, it is the responsibility of prosecution to ensure the presence of P.Ws so that trial may be concluded as soon as possible. If prosecution or jail authorities failed to perform their lawful duties in accordance with law, the court cannot sit idol or as silent spectator but it is the responsibility of court to ensure that prosecution and jail authorities are performing their lawful duties properly which is necessary not only for dispensation of justice but also required for expeditious criminal administration of justice. It is also strange to note that jail authorities for few dates reported that accused persons are refusing to appear in court and their alleged statement was simply accepted by jail authorities and they informed the court accordingly. It is responsibility of jail authorities/prosecution to ensure attendance of accused persons/UTP(s) in time before the court. On the other hand, it not so simple to comprehend the statement of jail authorities that accused made desire that he does not want to appear before trial court and jail authorities accepted his wish and obliged him. If such type of lame excuses are accepted or allowed then it would be very difficult for the courts to impart justice. If UTP(s) were not produced by the jail authorities for 24 dates it was the responsibility of the trial court to initiate coercive measures to compel the appearance of UTPs as well as prosecution witnesses, but trial court instead of taking coercive action in accordance with law put the entire blame on the applicant and bail application was rejected on the sole ground that custody was not produced by jail authorities and on three dates accused persons themselves chosen not to appear. It is nowhere mentioned that how many show-cause notices were issued to the jail authorities against non production of UTP(s)/accused on 24 dates. It is also not mentioned whether any complaint was lodged to learn District Judge for taking necessary actions or what action was taken against the prosecution who failed to produce witnesses in court. Chapter (D) of National Judicial Policy, 2009 pertains to "Expeditious Disposal of Cases" and Clause No.1, relates to "Short Term Measures" for criminal cases. In Clause No.10, it is clearly provided that all criminal cases punishment with imprisonment from 7 years and above including death cases shall be decided within a period of one year. In sub-clause (a) of Clause 10, it is necessary for the courts that on receipt of challan, it should immediately fix the case and issue production order, warrants/notice and according to sub-clause (c), it is the responsibility of courts to take all necessary measures to bind the SHO/IOs to produce evidence on the next date. It is further provided in the same chapter that all efforts should be made to produce witnesses and the case property on the first date of hearing and take strict action against the parties or witnesses causing deliberate delays in proceedings. In Clause 12, it is further provided that production before the court for remand/trial is statutory right of every prisoner, therefore, District & Sessions Judge and jail authorities to ensure that prisoners must be produced before court. The District & Sessions Judge should also monitor that while granting remand, all requisite procedural formalities are complied with. Sub-clause (i) of Clause 10 provides that production of prisoners/witnesses and other relevant evidence before the court is the responsibility of prosecution/investigation agency, therefore, concerned authorities should discharge their responsibility without any failure or slackness. In Sub-clause (ii), it is further provided that prosecution should procure attendance of witnesses on the date of hearing and the court must ensure that no witness should returned un-examined and .the prisoner without any progress in his trial/case. Sub-clause (iii) makes much emphasis that trial court shall not grant unnecessary adjournments particularly on account of failure to produce prosecution witnesses. If any police officer or investigating officer of the case is found guilty of deliberate attempts to prolong the trial, trial court may report the matter to the officer in charge of such police officer for taking necessary action. If in any case it appears that no action has been taken on the complaint, matter may be brought to the notice of Chief Justice through Registrar for initiating contempt proceedings against such police officer, responsible for causing hindrance in conclusion of trial. Expeditious and fair trial is fundamental right of accused persons. The intention of .law is that criminal case must be disposed of without unnecessary delay. It will not be difficult to comprehend that inordinate delay in imparting justice was likely to cause erosion of public confidence in the judicial system on one hand, and on the other hand, it was bound to create a sense of helplessness and despair and feelings of frustration and anguish apart from adding to their woes and miseries. Reference may be made to 2003 MLD

19. At this juncture, I would also like to refer AIR 1941 Sindh 186, in which it was held that what the law contemplates is due diligence and impartiality ,in the prosecution of the' criminal cases. It is not the law that a criminal case should linger long. Similarly in AIR 1942 Calcutta 219, it was held that policy of criminal law is to bring the persons accused of justice as speedily as possible so/that if they are found guilty they may be convicted and if they are found innocent, they may be acquitted and discharged. In 2000 SCMR 107, the hon'ble Supreme Court held that object of criminal prosecution is not to punish an under trial prisoner for the offence alleged against him. The object of criminal trial is that the accused is made to face the trial and answer the criminal charge against him. In the Criminal Procedure Code various provisions are available for process to compel appearance and the mode of taking and recording evidence and courts may exercise a range of powers to expedite and conclude the trial and in this regard, awesome guidance in the National Judicial Policy in 2009 has been provided to ensure its due implementation with dynamic approach within the prescribed time. The honourable Supreme Court as already held that when the summons are issued for the witnesses and the witnesses do not appear in response to it, the reasons therefore must be examined and noted in the order sheet and where necessary coercive steps should be taken for securing the attendance of witnesses. The Court not to feel so powerless in matter of securing attendance of witnesses. In case of disobedience it is for the Court to use the powers vested in it. Reference can be made to PLD 1984 SC 428".

7. After examining the case diaries, it is clear beyond any shadow of doubt that the applicant alone can not be held responsible for the delay. F.I.R. was lodged on 24-11-2008. Applicant was arrested on 26-11-2008 and charge was framed on 25-6-2009. During the entire period of trial, only the complainant and one more prosecution witness have been examined so far and for last more than three years, the applicant is confined in jail but his case has not been decided. The learned APG did not argue that the applicant is previously convicted offender for an offence punishable with death or life imprisonment. The honorable Supreme Court in the judgment reported in 1985 SCMR 1509, held that accused was in custody as undertrial prisoner for about three years. Period for which case was adjourned on accused request, if excluded, accused had been behind bars for more than 2-1/2 years, therefore, accused was granted bail. In this case also, if adjournments sought by the applicant are excluded even then his period of detention is much more than two years.

8. For the foregoing reasons, the applicant is granted bail on furnishing surety in the sum of Rs.2,00,000/-(Rupees two lacs) with PRI bond in the like amount to the satisfaction of trial Court. Since it is an old case, therefore, it is expected that the learned trial court shall conclude the trial within a period of four months. M.W.A./A-18/K Bail granted.