2003 PLP 2007 (YLR)

The bail application on merits has already been dismissed by this Court vide order dated 17-4-2002. The learned Advocate for the applicant has stated that the applicant was arrested on 17-1-2002 and since then he is in jail, but even the charge has not been framed. He has further stated that due to the fault of co-accused, the applicant cannot be penalized because he is entitled for an early decision of the case, which is not being given in this case. I have perused the impugned order and find that the case is being delayed for want of non-production of co-accused as co -accused Saleh was declared dangerous criminal and Superintendent of Jail made a reference to the Government of Sindh for trial of the case inside the jail. From the observation of the trial Court, it appears that the trial Court has shown his inability to proceed with the case and helpless in tackling this case because of above reason. The law is very clear that if some of the accused are not attending the Court, then the case of remaining accused can be separated so that an early decision can be given, which is the Constitutional right of an accused person. In this connection Rule 7(i) of Chapter VII of Federal Capital Criminal Circular is very clear where this type of problem has been tackled. The said rule reads as under:-- "7. (i) The attention of Sessions Judge is drawn to the instructions for the expedite disposal of murder cases contained in the accompaniment to Government Resolution Home Depart ment, No.2234-H/40, dated 5th July, 1941 and they are required to comply the rule (printed on para.158 of the circulars)." Thus the case of accused person who has not been apprehended can be separated. Para. 1 of the above mentioned resolution reads as under:-- "

1. Where more than one accused is involved, the commencement of proceedings should not be held up until all the wanted persons are apprehended, but the case should be proceeded with as soon as the principal accused is/are 'secured, excepting exceptional circumstances with the special permission of the District Magistrate concerned." Furthermore, section 233 read with sections 235 and 239, Cr.P.C. is very clear under which each offence and each accused person is to be tried separately, but sections 235 and 239, Cr.P.C. are exception to section 233, Cr.P.C. where the several offences and several accused persons can be joined together at one trial. The trial Court can invoke the said provision so as to tackle the problem. The Hon'ble Supreme Court of Pakistan has interpreted the sections 233, 235 and 239, Cr.P.C. It has been clearly observed that the trial Court has discretion to try each offence and each accused separately, but the discretion should be exercised judiciously. Reliance is placed in a case of Noor Ahmad v. State reported in PLD 1964 SC 120 and at page 124, it has been observed as under:-- "The provisions of sections 235 and 239 of the Criminal Procedure Code vest, in our view, a discretion in the Court to try offences of the kinds indicated therein jointly in the circumstances therein mentioned, but there is nothing in them to indicate that the Court is bound to try such offences or persons together in every case. The discretion vested in the Court by these sections is expected like any other discretion vested in a Court of law to be exercised upon sound judicial principles and in the light of the facts and circumstances of each case." After considering the material available on the record, the learned trial, Court is directed to separate the case of the present applicant from the co-accused, who are not attending the Court, so that early hearing should be given to the case of the applicant. The learned Advocate for the applicant has stated that the trial Court may be directed to examine the injured witnesses within a period of six months. Order accordingly. At this stage no case of bail is made out. The application is disposed of in the above terms. Bail application dismissed accordingly. H.B.T./R-92/K