1998 PLP 1551 (MLD)

Naraindas Motiani, AddI. A.-G., Sindh alongwith Muhammad Saleem, Assn. A.-G., Sindh for the State. On 28-3-1997, accused namely Zulfiqar son of Riyasat was granted bail in Criminal Bail No.374 of 1997 while accused Muhammad Mushtaq alias Munna was granted bail on 10-4-1997 in Criminal Bail No.436 of 1997, through short orders. Following are common reasonings for both the above-said short orders as these arise from the same F.I.R.

2. Brief facts as alleged in the F.I.R. dated 20-9-1995, lodged with Police Station Mithadar, Karachi South, at about 1615 hours, are that on the same day when the complainant Abdul* Hameed, who is jeweller by profession, went to his house in the afternoon to take lunch, he was informed by his other brother that some four dacoits had entered in their apartment. It is also alleged by the complainant that he immediately went outside the said building and locked the main door. He then called police on emergency phone number

134. It is further stated in the F.I.R. that the other persons from the neighbourhood also called Illaqa police. It is further alleged that these alleged dacoits when tried to come out of the building, the Mohallah people pelted stones on them. Meanwhile, police arrived and after exchange of fire arrested the four alleged dacoits and also recovered stolen articles, details of which are given in the said F.I.R. names of all the accused, arrested on the spot, are also disclosed in the F.I.R. It is specifically alleged that accused Rashid son of Islam was having a T.T. Pistol in his hand, which was recovered from him.

3. I have heard Mr. Abdul Karim Junejo, Advocate for applicant/accused Zulfiqar and Mr. Rana M. Shamim, Advocate for accused Muhammad Mushtaq, Mr. Naraindas Motiani, Additional Advocate-General Sindh in Criminal Bail No.374 of 1997 and Mr. Muhammad Saleem Assistant Advocate-General in Criminal Bail No.436 of 1997 for the State. It is admitted position that both the accused were arrested on 20-9-1995 from the alleged place of incident; that charge was framed on 12-11-1995 and that till this date i.e. 28-3-1997 only three prosecution witnesses have been examined. It is argued by learned counsel for the applicants that in all there are eighteen (18) prosecution witnesses cited in the charge-sheet, out of which only three witnesses have been examined during the period of last 18 months. They have further argued that there is no likelihood that the trial would be concluded in near future. It was vehemently argued that except the dates 26-11-1995 and 10-3-1996 no adjournments or delay can be attributed to the present applicants/accused. Reliance was placed on cases of Ali Sher v. The State (1992 PCr.LJ. 2515) and the case of Aamir v. The State (1991 PCr.LJ. 534). Learned Additional Advocate-General has vehemently opposed the bail application on the grounds that there are several occasions when the trial was adjourned at the instance of the defence. The learned counsel for the State have further argued that under the High Court orders, police papers were called which remained there for three months and it was due to acts of the defence that delay was caused in completion of trial. They further referred to several diaries of the learned trial Court when the prosecution witnesses were present but the learned presiding officer was on election duty. There are certain dates of hearing when the case was adjourned by consent of both the sides, which, according to the learned counsel for the State, is to be attributed to the defence. With the assistance of all the learned counsel, I have gone through the entire case diaries/order of the trial Court.

4. For the first time, P.Ws. were produced on 26-11-1995 when these witnesses were bound down and the case was adjourned to 27-11-1995 for the reason that the custody of the accused was produced at 2-30 p.m. On 27-11-1995, P. W.1 Hamid was examined but recording of his cross-examination was adjourned at the instance of defence counsel subject to payment of cost of Rs.2,

00. The case was adjourned to 21-12-1995 when the said witness was present but the custody of the accused was not produced. Mr. Naraindas has referred to the dates 13-2-1996 and 10-3-1996 when, according to him, hearing was adjourned at the instance of defence. On 13-2-1996, the case was adjourned on the application of complainant as other two P.Ws., were not present. Therefore, this delay cannot be attributed to the present applicant. However, on 10-3-1996 adjournment was sought by the present applicant/accused as his counsel was not present and the matter was adjourned for two days only i.e. to 12-3-1996 when again the custody of accused persons was not produced from the jail. However, late diary of the said date indicates that A.P.P. was also not present either in the early hours or at 1-00 p.m. Mr. Naraindas has also referred to the diaries dated 12-5-1996, 30-5-1996 and 3-7-1996 when the hearing was adjourned as the police papers were not available with the prosecution and were summoned by the office of Advocate-General, since as bail application of one of the accused was pending in this High Court. That period is spread over for nearly three months. To me, such delay could not be attributed to accused person, as I am of the considered view that it is the duty of the office of Advocate-General, Sindh to return the police file immediately after disposal of bail applications. This delay in return of the police file occurred may be due to negligence of the clerks or officers of that office but for such negligence an accused person is not liable to be penalised. In addition, I would like to point out that Criminal Bail No.643 of 1996 was disposed of on 4-6-1996 and, therefore, it was duty of the office of Advocate-General to return the file which was not done till August, 1996.

5. Learned Additional Advocate-General has also pointed out diaries of 21-1-1997, 25-1-1997, 29-1-1997 and 30-1-1997 when the hearings before the trial Court were adjourned by consent of both the parties i.e. Deputy District Attorney and defence counsel. I am afraid that in such circumstances whether only accused can be held responsible for delay? To me answer should be in negative, as prosecution was equally responsible in making request for adjournment. However, learned counsel for the applicants have invited my attention of the fact that on these dates the learned Presiding Officer was on election duty. Therefore, again adjournments on such dates cannot be attributed to accused persons.

6. In the case of Ali Sher v. The State (1991 PCr.LJ 2515), a learned Single Judge of Lahore High Court extended bail to an accused involved in an offence of Zina on the consideration, inter alia, that more than one year has passed since the arrest of accused/registration of the case and trial has not been concluded till that date. In Aamir v. The State (1991 PCr.LJ. 534) a learned Single Judge of this Court Qaiser Ahmed Hamidi, J. (as he then was) granted bail to an accused alleged of an offence under section 302, P.P.C. on the consideration inter alia that adjournment sought by the counsel for the defence, on three occasions cannot be attributed to the accused. In that case bail was granted to accused after deducting the period for which the adjournments were sought by the counsel for accused. Learned trial Court has also referred to two reported judgments, firstly, Muhammad Younas v. The State (1995 SCMR 1087) where the Hon'ble Supreme Court refused to grant leave against the order of Lahore High Court, Rawalpindi Bench, on the grounds that on four occasions hearing was adjourned at the instance of accused. In Hasan v. The State (PLD 1996 Karachi 489) it was held that in case where the trial Court has adopted a mathematical method of calculating delay and adjournments sought during the pendency of proceedings before trial Court while accused remained in custody and subtracting from it the period obviously involved in delaying the case was held not to be proper mode of reckoning the period envisaged in the third proviso to subsection (1) of section 497, Cr.P.C. It was further held that an adjournment of a single day have repercussions and reverberations and other implications in leading to the delay of the case.

7. I could like to refer the case of Shaukat alias Shoki and another v. The State (1984 SCMR 613) which was not cited before the learned Division Bench of this Court in the case of Hasan (supra). In that case, Hon'ble Full Bench of Supreme Court granted bail to accused who were facing trial under section 302, P.P.C. on the ground that the act or omission of one co-accused who are being jointly tried would not deprive others of the benefit of this proviso and that the fact that counsel representing the accused was busy in other professional work and was unable to attend the trial Court will not ipso facto be considered as ground for delay in conclusion of trial. There is another case of Hon'ble Supreme Court which was again not cited before the learned Division Bench of its Court, namely Abdullah v. The State. (1985 SCMR 1509) where bail was granted to accused involved in an offence under section 302, P.P.C. by a Bench comprising of Dorab Patel and Muhammad Haleem, J. (as their Lordships then were) on the ground that if the period for which the case was adjourned at the request of accused is excluded, the accused was behind the bars for more than 2 and 1/2 years.

8. Even if the period for which the adjournments were granted at the instance of present applicant/accused is excluded, there remains in field a period more than one years which delay cannot be attributed to the applicant/accused. Under these circumstances, through two separate short orders, both applicants/accused were admitted to bail upon furnishing sureties in the sum of Rs.200,000 (rupees satisfaction of the Nazir of this Court, Above are the reasonings for the said short order. H.B.T./Z-24/K Bail granted.