1985 P Cr (PLP)

Umer Farooq Khan for Applicant. Sarfraz Ahmad, Asstt. A.‑G. for the State. Applicant Muhammad Yaseen is being tried alongwith co‑accused Javed Iqbal for offence under section 302/34, P.P.C. This is an application for bail filed under section 497, Cr.P.C. on the ground of statutory delay. It is submitted by Mr. Umer Farooq that applicant Yaseen was taken in custody on 21‑11‑1982 and upto today he has remained in custody for two years, five months and twenty‑four days. For the purpose of bail on the ground of delay third proviso to section 497, Cr.P.C. is being invoked. Certified copy of the diary sheet has been produced which starts from 22‑12‑1982 and the last mentioned entry is 2‑4‑1985. Perusal of the diary sheet shows that there are at-least ten such dates on which adjournments were granted and these adjournments could be attributed to applicant Muhammad Yaseen. First three such adjournments have been explained away by Mr. Umer Farooq, counsel for applicant Yaseen. It is submitted by him that on 15‑5‑1983 although he was absent but the case could not proceed because copies were not supplied under section 265‑C, Cr.P.C. On 30‑7‑1983 he was absent but on that day copies were supplied under section 265‑C, Cr.P.C. and the case had to be adjourned because those copies had to be studied to prepare the case for the purpose of cross‑examination. On 14‑9‑1983 he was not present and the charge could not be framed but Mr. Farooq has explained that it is not specifically mentioned in the diary sheet of the date that he was absent and according to him defence counsel for other co‑accused Javed Iqbal was not present. Mr. Farooq has further explained that even if he was absent the case could not have proceeded because counsel for other co‑accused was not present. These explanations are also accepted. Apart from this there are seven adjournments for which no explanation is given by Mr. Farooq. On 24‑3‑1984 Order Sheet shows that D.C. Mr. Farooq was called absent. Case was called out at 1‑00 p.m. Two P.Ws. were present who were bound down for next date. Order Sheet, dated 24‑3‑1984 shows that D.C. Mr. Farooq filed an application for adjournment which was granted. Order Sheet of 3‑6‑1984 shows that Mr. Farooq was repeatedly called absent upto 12‑20 noon. Trial Court ordered issuance of notice to Mr. Umer Farooq. P.W. Roost Edulji was present and was bound down for the next date. Order Sheet of 19‑8‑1984 shows that an application was filed for adjournment on behalf of D.C. Mr. Umer Farooq, who had gone for Haj. These four adjournments mentioned above are categorically admitted by Mr. Umer Farooq and he states that he has absolutely no explanation to offer. Apart from what is stated above, there are other three adjournments also. On 25‑11‑1,984 Order Sheet shows that Mr. Umer Farooq asked for adjournment. On 1‑12‑1984 again Order Sheet shows that Mr. Farooq requested for adjournment. On 4‑12‑1984 Order Sheet shows that Mr. Farooq was absent. Mr. Farooq has explained about these three dates mentioned above and states that blame could not be put on the applicant for delay for the reason that these dates were given in connection with hearing of bail application and not the trial. Since bail is statutory right of the accused, I exclude these dates from consideration. There is no dispute about the fact that there are four dates for which Mr. Farooq is not in a position to offer any explanation and has categorically admitted these adjournments. On the basis of these four adjournments it can be said that this delay is contributed by applicant Muhammad Yaseen or on his behalf. Legal position on this point is crystal clear. Supreme Court has held in the case of Akhtar Abbas v. The State P L D 1982 S C 424 that the intention of law is not to permit calculation of amount of delay caused by the defence but to see if finalisation of trial was delayed by an act or omission on the part of accused. If delay is partly attributable to the accused then he is not entitled to bail on the ground of statutory delay. I, therefore, hold that in the instant case applicant is not entitled to bail on the ground of statutory delay. Mr. Sarfraz Ahmad has drawn my attention to the 4th proviso to section 497, Cr.P.C. which empowers the Court not to grant bail on the basis of third proviso if in the opinion of the Court, accused, who has applied for bail, is a hardened, desperate or dangerous criminal. The learned A.A.‑G. has submitted that such power is given to the Court which is cognizant of matter under section 497, Cr.P.C. and such observation can be made on the basis of material collected by the prosecution. It is further submitted by him that in the instant case allegation against the present applicant is that he alongwith co‑accused has committed triple murder by slaughtering three persons namely Inayatullah, Muhammad Ramzan and Mujeebur Rehman in the room of Grand Hotel, Malir on 1‑11‑1982 after drugging them. Prosecution is in possession of the evidence to show that two accused persons alongwith deceased came to the hotel and booked rooms and deceased persons were last seen alive in the company of applicant and co‑accused. On this ground I also hold that applicant is not entitled to bail and his bail application is dismissed. Observations made above are‑ tentative in nature and are to be confirmed to the disposal of bail application and are not intended to have any bearing on the merits of the case. It is open to the trial Court to evaluate evidence on its own strictly according to law and merits. S.G.D. Bail declined.