2015 PLP 2282 (YLR)

MUHAMMAD FARRUKH IRFAN KHAN, J.

This is the third petition on behalf of the petitioner seeking post arrest bail on statutory ground in case FIR No.42/2012 dated 25-1-2012, registered under sections 458/380, P.P.C. at Police Station, Shorkot City, Jhang. The peti-tioner's first bail petition (Cr.Misc.258-B/ 2013) was dismissed on merit, vide order of this Court dated 23-1-2013. His second bail petition (Cr.Misc.No.3372-B/14) was dismissed as withdrawn on 8-4-2014 as he wanted to approach the learned trial Court on statutory ground of delay in conclusion of the trial. The petitioner approached the learned trial Court for post arrest bail on statutory ground but the same was dismissed by the learned trial Court on 16-7-2014 and thereafter by the learned Additional Sessions Judge, Shorkot City, Jhang on 24-7-2014.

2. After hearing arguments of the learned counsel for the parties as well as the complainant and the learned Additional Prosecutor General, Punjab, this Court is of the considered view that the petitioner is not entitled to the concession of bail on statutory ground for the following reasons:-- (i) As per report submitted by the learned trial court, delay in con-clusion of the trial has occasioned due to non-appearance of the lawyers, who have been observing strike on most of the dates on which the case was fixed for evidence of prosecution witnesses. As such delay in conclusion of the trial is not attributable to the prosecution in any manner whatsoever; (ii) The report further reveals that during the period from 4-1-2014 to 15-7-2014 the case was fixed on different occasions for evidence of prosecution witnesses, who were present in the Court but their evidence could not be recorded due to non-production of the co-accused or non-availability of the lawyers, who were on strike. (iii) The accused/petitioner cannot be given benefit of non-appearance of his learned counsel due to strikes inasmuch as it is responsibility of the accused/petitioner to ensure availability of his learned counsel on each and every date of hearing, especially when P.Ws. have been appearing for recording of their evidence. Any act or omission on the part of the accused/petitioner, which resulted in causing delay in conclusion of the trial disentitles him to the concession of bail under 1st proviso to section 497(1) of the Cr.P.C. The accused responsible for causing delay in conclusion of trial by design is not considered entitled for the concession of bail on statutory ground. Reliance is placed on the case of The State v. Aijaz alias Fouji Lashari and others (2013 PCr.LJ 1331). In the case of Khalid v. The State (2014 PCr.LJ 437) it has been held that one adjournment by accused whether necessary or un-necessary deliberate or non- deliberate might frustrate further dates of hearing as it took hectic efforts to accumulate and motivate all prosecution witnesses, complainant etc. for trial/evidence and one such desire of adjournment on the part of accused might unsettle mind of prosecution witnesses for the next few dates at least if not more and the same did not work on mechanical inclusion and exclusion of the days. It has been further observed that mathematical calculation of excluding adjournments sought by accused or considering dates when presiding officer was on leave would not serve the purpose as one adjournment application on the day when trial could have begun, if granted on account of incapacity of accused to proceed, the whole process would be frustrated and it would again depend on hectic efforts to fix a date and time suitable for witnesses who out of their busy schedule might not get time for next date or so. In the present case, non-appearance of the learned counsel for the petitioner on the pretext of strike amounts to omission on the part of the petitioner, who is duty bound to ensure his representation on each and every date of hearing.

3. Resultantly, the instant petition being devoid of any merit is dismissed. However, the learned trial court is directed to conclude the trial within four months from the date of receipt of this order. HBT/A-192/L Bail refused.