2011 PLP 2853 (YLR)

SALMAN HAMID J.

Present bail application, relates to Crime No.108 of 2008, Police 'Station Baberloi, lodged by one Hafeezullah (the Complainant) against Zahid Hussain, son of Muhammad Sadiq (the applicant) and two others co-accused mentioned in the above F.I.R. The Applicant in the first instance applied for the bail before the IIIrd Additional Sessions Judge, Khairpur (Trial Court) in Sessions Case No.342 of 2008, (Sessions Case) which bail application was dismissed on merits by the Trial Court in terms of Order dated 20-7-2011. Such bail application having been dismissed, the applicant approached this Court by way of filing Criminal Bail Application No.S-732 of 2010 which however was not pressed by the learned counsel for the applicant and a direction was sought that the Trial Court conclude the trial of the Sessions Case within a period of four months from the order that would be passed. Accordingly Order dated 23-9-2010 was passed for disposal of Sessions case within four months.

2. From the Order dated 1-3-2011, passed by the Trial Court, it seems that the Sessions Case was not concluded within the stipulated time, as directed by the High Court in terms of Order dated 23-9-2010. It was therefore agitated on behalf of the applicant before the Trial Court that he may be enlarged on bail because of above non-compliance but such prayer was declined. Present bail application was presented before this Court on 2-5-2011.

3. Learned counsel for the applicant did not argue on the merits inasmuch as on such grounds bail was declined by the Trial 'Court and the bail application that was moved by the applicant before this Court (S-732 of 2010) was also not pressed and an Order was obtained that the Trial Court be directed to conclude the Sessions Case within a period of four months from the date of such Order, being passed on 23-9-2010. It was argued by the learned counsel for the applicant that since there was specific direction of the High Court to conclude the evidence within a period of four months, it ought to have been concluded within such time, more particularly when there were no adjournments associated with the applicant. Ground of statutory bail after advent of Act VIII of 2011 Criminal Procedure Code was also brought in. It was argued that the record which was summoned by this Court from the Superintendent Central Prison, Khairpur and from the Police Station concerned would show that other than the present Sessions. Case, the applicant was not involved in any other criminal case and that in Crime No.119 of 2008 of Police Station Baberloi, lodged under section 13E of Arms Ordinance which was the off shoot of the above F.I.R, the applicant has already been acquitted on 20-5-2010 by the IIIrd Additional Sessions Judge, Khairpur. To contend that no adjournment could be attributed against the applicant, it was mentioned that since the date of passing of Order dated 23-9-2010, till date, (21-7-2001) twenty four dates had gone by and at best save for two, none could be put in the pale of the applicant. It was also mentioned that the applicant is behind bars since 8-7-2008 with the result that more than a period of three years has passed and after Act VIII of 2011, Cr.P.C. and also keeping in view the past record of the applicant he has become entitled to the statutory bail.

4. In support of his above contentions, learned counsel for the applicant relied upon the cases of Imran Ameen v. The State (2002 MLD 1416), wherein a Division Bench of this court in a narcotic case held that no compensation is provided in the judicial system for the accused, detained, whether for a long or short time and ultimately acquitted and that the intention of the law was not to keep under trial prisoners in jail custody indefinitely. Looking at such aspect of the matter, the accused in such case was enlarged on bail. In the case of Abdul Kareem alias Karoo and others v. The State (2009 YLR 71), a Single Judge of this court while appreciating that the accused therein were behind the bars for the last more than twenty seven months and despite directions of the High Court, (as also in the present case) the trial court had failed to conclude the trial within the stipulated time and that no adjournment was attributed against that accused, the accused therein was granted bail by appreciating that long delays in conclusion of the trial by itself would amount to abuse of the process of the court and that no one could be detained in jail indefinitely. In the case of Muhammad Aslam v. The State (1999 SCMR 2147) the honourable Supreme Court of Pakistan enlarged the accused therein on bail when it came to the conclusion that despite directions of the High Court, trial against the accused had not been concluded within the stipulated time. In the case of Iftikar alias Dani v. The State 2000 YLR 1223 it was held that since total period of detention of petitioner was two years five months and fourteen days and the dates of adjournment sought by him came to 151 days only and even if 151 days are deducted from total period of detention, balance period of detention comes to more than two years, the accused therein was granted the benefit of statutory bail and was enlarged. In the case of Abdullah v. The State and another (1985 SCMR 1509), the honourable Supreme Court of Pakistan granted statutory bail to the accused therein by holding that the accused was in custody as an under trial prisoner for about three years and if the period for which case was adjourned even at accused instance is excluded, it would come that such accused remained behind bars for more than two and half years and therefore he was enlarged on bail.

5. Learned counsel for the complainant argued that the applicant is not entitled to statutory bail inasmuch as according to him no adjournment was asked for by the complainant and the same at best were attributable either to the prosecution/ State or that the court remained vacant. In support of his contention the case of Abdul Qadeer and 2 others v. The State (2000 MLD 791) was relied upon wherein a Single Judge of this Court refused bail to the accused therein when it came to the conclusion that it was the accused themselves who were responsible for delay in conclusion of the trial as it were them who sought adjournments after adjournments. However, herein, even from the complainant's own showing out of 24 dates from the date of Order dated 23-9-2010 till date, (21-7-2011) at best four adjournments could be attributed to the applicant, which in reality is not the case as would be evident in the later part of this decision.

6. The learned State Counsel very frankly stated that though on merits the applicant's application had been dismissed by the. Trial Court and was not pressed before the High Court, still he (the applicant) has a right to bail on the statutory ground if the conditions are met. According to the jail and Police Station reports there are no cases pending against him, save the Sessions Case and that in Crime Case No.119 of 2008, which was the off-shoot of the F.I.R. which is the subject matter of the present case, the applicant has been acquitted. However, the learned counsel for the State argued that on 26-11-2010, 17-1-2011, 25-1-2011 and 1-3-2011 the Sessions Case was adjourned because of the applicant.

7. I have perused the order sheets of the above dates. Save the diary of 26-11-2010, the other three dates could not be 'attributed to the applicant and even on 26-11-2010 case was adjourned because the new counsel was engaged by the applicant. As far as diary of 17-1-2011 is concerned no where it is reflected that the date was given only because of the accused. The order of 25-1-2011 would show that the matter was fixed for arguments on bail application moved by the applicant, when on such date the applicant was present along with his counsel and the case was adjourned not because of him but on account of adjournment being sought by co-accused. The diary of 1-3-2011 would also show that again the matter was adjourned as the applicant was not produced and on such date bail application was also fixed on which arguments were heard and the application was dismissed.

8. All the above expositions would show that the applicant is behind bars for more than three years; that the trial has not concluded despite specific orders of this Court, not because of the applicant but for the reasons beyond his control; that at best one or may be two out of 24 adjournments after 23-9-2010 could be attributed against the applicant and if gauged on the touch stone of the case of Iftikhar and the case of Abdullah, cited by the learned counsel for the applicant, mentioned and discussed above, still a case for statutory bail has been made out. The applicant's case is fortified by the fact that other than the present Sessions Case, there is no other criminal case pending against him and that in Criminal Case No.119 of 2008, which was an off-shoot of the F.I.R. under point he has been acquitted by the Additional Sessions Judge, Khairpur vide judgment dated 20-5-2010 and that the applicant has no previous criminal record and also that he was not previously convicted and is also not a hardened and desperate criminal (which also was not argued by the complainant's counsel or the State counsel) and keeping in view various precedents cited and relied upon by the learned counsel for the applicant and discussed above the applicant is enlarged on bail, subject to his furnishing a surety in an amount of Rs.200,000 (Two hundred thousand) and the P.R. bond in the like amount to the satisfaction of the Additional Registrar of this Court.

9. This Criminal Bail application stands disposed of accordingly. H.B.T./Z-11/K???????????????????????????????????????????????????????????????????????????????????????????????? Bail granted.