2014 P Cr (PLP)

IRFAN SAADAT KHAN, J.

This Criminal Bail Application has been filed on behalf of the applicant, who is nominated in F.I.R. No.350 of 2009, under section 295-C, P.P.C. of Police Station Gizri, on the ground of statutory delay in concluding the trial.

2. Briefly stated the facts of the case are that the above F.I.R. was registered against the applicant on the complaint of respondent No.2 Mr. Ansar Abbasi on the ground that the applicant has committed blasphemy. Thereafter, the applicant was arrested, interrogated and sent to jail, wherein he is confined till date.

3. As per the complainant he received two e-mails on 29th and 30th of June, 2009, contents whereof were not only obnoxious but also extremely disturbing for the Muslims. Since these e-mails were blasphemous in which some offending and, defiling remarks were used against our Last Prophet Muhammad (Sallallhu Alaihi Wasallam), the complainant attached the said e-mails with his application dated 17-7-2009 and forwarded the same for registration of F.I.R. against the applicant. An enquiry thereafter was conducted by the FIA Inspector Mr. Muhammad Ali Abro, who made search of the premises of the accused and thereafter took into his possession certain materials including USB Expode 2GB etc. After thorough investigation and discovering the password it revealed that it was the applicant who has been responsible for sending those blasphemous e-mails, thereafter, the instant F.I.R. was registered.

4. A bail application was moved before the Additional Sessions Judge, who vide his order dated 26-8-2009 dismissed the same. The applicant thereafter moved another bail application, which was also dismissed by the Additional Sessions Judge vide order dated 10-6-2010. Then the applicant moved yet another bail application on the ground of statutory delay, which too was dismissed by the Additional Sessions Judge vide order dated 18-10-2011. It is against this order that the present bail application has been filed on the ground of statutory delay.

5. Ms. Sarah Belal and Ms. Saman Imtiaz, Advocates appeared on behalf of the applicant and submitted that the applicant is behind the bars since the last more than four years. They submitted that charge was framed after a delay of 10 months and 13 days and first prosecution witness in this case was produced after more than 17 months of the arrest. They stated that as the applicant is behind the bars since more than two years, after the framing of the charge, hence he is entitled to be released on bail on the ground of statutory delay. They furnished a detailed chart mentioning each and every date on which the case was fixed and submitted that perusal of the said chart would reveal that the delay has occurred because of the prosecution side as they were not proceeding with the trial. While elaborating her viewpoint Ms. Sarah Belal submitted that no doubt a number of adjournments were taken by her but those adjournments were on the ground of either death in the family, non-availability of seat as she has to come from Lahore, personal illness, appearance before some other Court, strike, Court lying vacant etc. She stated that the adjournments were taken only when the reasons were beyond her control. She, however, frankly conceded that on certain dates adjournments were taken by her due to none of the above reasons. While explaining her viewpoint she submitted that she was in contact with the Reader of the Court, who used to inform her about the matter in case of any eventuality or when the case is not likely to proceed on a certain date. She submits that even after the passage of substantial time only 3 prosecution witnesses out of 18 have so far been examined. According to her there is no likelihood in the near future that the case could be concluded and in view of the circumstances, the applicant is entitled to be granted bail. The learned counsel has submitted certified copies of the various adjournment applications moved by her before the lower Court. She further submitted that the newly-inserted provision of section 497, Cr.P.C. is a relief giving provision according to which if a delay has occurred in the trial, the applicant is entitled to be enlarged on bail. She states that however there are certain prerequisite conditions of law in this regard. In support of her above contentions the learned counsel has relied upon the following decisions:-- (1) Ziauddin v. The State (PLD 2012 Sindh 147) (2) Razia Bibi v. The State (2011 YLR 1008) (3) Jamshed Ali v. The State (2012 PCr.LJ 1022) (4) Malik Amjad Pervez v. The State (2012 YLR 1907) (5) Zameer v. The State (2012 YLR 477) (6) Zulfiqar v. The State (1998 MLD 1551) (7) Taj Muhammad v. The State (2011 PCr.LJ 1910). (8) Haji Javed Ahmed v. The State (PLD 1997 Karachi 156) (9) Abdul Razzak Zangejo v. The State (PLD 2012 Sindh 218)

6. Mr. Nadir Chang, Advocate has appeared on behalf of the respondent No.2/complainant and filed a statement according to which the complainant received the e-mails, which, according to him, were blasphemous and forwarded the same to the FIA. The complainant further submitted that he is ready to appear before the Court to give statement and to cross-examine himself about the same. The complainant, however, stated that since he has done his duty, it is for the Court to decide whether to grant bail or not, as per the facts and circumstances of the case.

7. Mr. Saleem Akhtar, Additional Prosecutor-General vehemently opposed the present bail application and submitted that the applicant has not come to the Court with clean hands as the parameters for granting bail, as mentioned in the newly introduced provision in section 497, Cr.P.C., have not been fulfilled. While elaborating his viewpoint he furnished a chart mentioning therein that from 3rd June, 2010 to 16th April, 2013, 64 hearings in the case took place and out of those 64 hearings for as many as 47 times defence counsel was not available. We submitted that out of those 47 times, 19 are the days on which the defence counsel took adjournment for one reason or the other. He submitted that it is the defence counsel who is responsible for the delay and now has come to the Court to take undue advantage of the newly-added provision of the law. He submitted that the defence counsel was fully conscious of the fact that if the matter is delayed, the applicant would be entitled to file a bail application on the ground of statutory delay, which is evident from the record. He further submitted that the prosecution has duly produced its witnesses and the delay in this regard is mainly due to the indifferent attitude of the defence counsel and unnecessary delay was on her part just to make out a case of statutory delay and file an application thereafter. He stated that the offence is heinous one and the applicant does not deserve any leniency to be enlarged on bail. He submitted that while calculating the delay no mathematical calculation has to be made and only it is to be seen whether the delay has occurred due to prosecution side or the defence. He submitted that the order passed by the trial Court is well-reasoned and the present bail application may be dismissed. He lastly submitted that he would have no objection if directions are issued to the trial Court to conclude the trial expeditiously on either daily or weekly basis in a certain given period. In support of his contentions the learned counsel has relied upon the following decisions:-- (1) Ali Muhammad v. The State (2009 PCr.LJ 521) (2) Khushi Muhammad v. Rab Nawaz (1996 SCMR 172) (3) Muhammad Azad Khan v. The State (2000 MLD 1479) (4) Abdul Rasheed v. The State (1998 SCMR 897) (5) Shah Muhammad and another v. The State (2000 YLR 2586) (6) Iqbal Brohi v. The State (1998 PCr.LJ 2066) (7) Muhammad Arif v. The State (2004 PCr.LJ 713)

8. Ms. Sarah and Ms. Saman in their rebuttal submitted that the adjournment applications were given for valid reasons. They stated that they were pursuing the trial vigilantly and adjournments were only sought due to the reasons beyond their control. They, however, conceded that 24 months have not been passed in the case after the framing of the charge but, according to them, as the matter is lingering on since quite some time, therefore, the applicant is entitled to be enlarged on bail.

9. I have heard all the learned counsel at considerable length and have perused the record and the decisions relied upon by them.

10. Before proceeding any further it would be in fitness of things if the relevant provision of law, as introduced through Code of Criminal Procedure (Amendment) Act, 2011, is reproduced below:-- "Provided further that the Court shall, except where it is of the opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf direct that any person shall be released on bail

(a) Who, being accused of any offence not punishable with death, has been detained for such offence for a continuous period exceeding one year or in case of a woman exceeding six months and whose trial for such offence has not concluded; or (b) Who, being accused of an offence punishable with death, has been detained for such offence for a continuous period exceeding two years and in case of a woman exceeding one year and whose trial, for, such offence has not concluded: Provided further that the provisions of the foregoing proviso shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life".

11. The perusal of the newly-added provision would reveal that in the case where the Court comes to the conclusion that the delay in trial has not been occasioned by the accused or any person acting on his behalf and he has been detained for more than two years and that he is not a previous convict and not a hardened, desperate or dangerous criminal, the Court may grant him bail. The most important thing in this regard is to examine the diary sheets to ascertain that whether delay in this regard has been either by the accused or any person acting on his behalf or by the prosecution. In case the Court comes to the conclusion that the delay has been occasioned due to the attitude of the applicant, the said accused is not entitled for bail, however, if the Court comes to the conclusion that the delay has been occasioned due to the prosecution side, the bail has to be granted as a statutory right.

12. The decisions relied upon by both the counsel revolve around the facts of those cases, however, the crux of all the decisions relied upon is to prove that the delay occasioned in a case whether could be attributed to accused or the prosecution, as the case may be, depending upon its own facts. The Hon'ble Apex Court as well as the High Courts in their various decisions, mentioned supra, have dilated upon the issue involving in those cases and have come to the conclusion in respect of those cases that whether case of bail has been made out or not. In my view each case has to be viewed as per its own peculiar facts and circumstances. There is no denial to the fact that the learned counsel took a number of adjournments, may be for the reasons beyond her control at some times, but the fact remains that the matter was adjourned on one pretext or the other. The learned counsel appeared before me has stated that she took adjournments due to the reasons of either non-availability of flight, illness, death in family, appearance before some other Courts etc. but has not denied the fact that this could not be attributed to the prosecution side. The applicant has chosen a counsel who comes from Lahore and in my view it is for the counsel coming from outstation to make necessary arrangements for appearance before the Court on the said date either by herself or through her associate. It is seen from the diary sheets that the counsel has even permitted her associate to proceed with the matter but it is strange to note that her associate has hardly proceeded with the matter on any date. Same is the position when the counsel was either ill or when there was a death in her family or when she was appearing before some other Courts that her associate never proceeded with the matter, which permission admittedly has been given with her, as evident from the diary dated 6-7-2011, when she was out of country, to her associate to proceed with the matter. It is also evident from the record that the Court has accommodated her on a number of occasions by granting her time when she requested for date through her cell phone.

13. The benefit provided under the law is only to be given, in my view, to a person who is diligent in pursuing the matter and was also able to prove that the delay occasioned could not be attributed to him and that neither he was negligent nor reckless and have not adopted delaying tactics to obtain the said relief from the Court. I am afraid, this is not the situation in the present case as in the instant case it is clearly evident from the diary sheets and as conceded by the learned counsel for the applicant that she has taken a number of dates, which, according to her, were beyond her control. I find myself to be in disagreement with her. In case of her absence on a particular date alternate arrangement could have been easily made. Such conduct amply, proves that the learned counsel herself was not vigilant in pursuing the matter before the trial Court and no lease in this regard could be given to her. The said provision, in my view has not been introduced to give lease to a person firstly delaying the matter and then approaching the Court for seeking relief thereof. It is clear from the diary sheets that the applicant and his counsel themselves were instrumental for the delay and are not entitled for the benefit provided under the law in this regard.

14. The Hon'ble Supreme Court in the case of Abdul Rasheed v. The State (1998 SCMR 897) has categorically observed that in case of delay, which could not be attributed to the prosecution and same is on the part of the defence the applicant is not entitled for grant of bail.

15. The decisions relied upon by the learned counsel for the applicant are found to be distinguishable as in those cases it was found by the Court that the delay occasioned in the case could not be attributed to the applicants and inordinate delay occasioned is likely to hamper the administration of justice and confidence of the common men in the judicial system. In such type of cases instead of making mathematical calculation one first has to see that whether delay occasioned could be attributed to the applicant or not in a particular case. When the Court finds that no such delay could be attributed to the applicant, the applicant is entitled to be enlarged on bail but, as discussed above, in the present case it could not be said that the delay could not be attributed to the applicant. From the record it is evident that the applicant was instrumental for the delay. Thus this is not a fit case to enlarge the applicant on bail on the ground of statutory delay in pursuance of amendment made in section 497, Cr.P.C. This bail application, therefore, is found to be devoid of any merits and, is hereby dismissed.

16. However, the trial Court is directed to conclude the trial preferably within a period of four months by expeditiously proceeding with the matter and the applicant would be at liberty to repeat the bail application, if so desires. MWA/M-104/K Bail refused.