1997 PLP 1576 (MLD)

18-1-1995 No P.W. present. Defence counsel away to Saudi Arabia for Umrah. 15-2-1995 File not produced. 26-3-1995 File produced. Adjourned for evidence 29-3-1995 Four P.Ws. present. Defence counsel not available. 12-4-1995 One P.W. examined. Three more in attendance but defence counsel requested for adjournment for preparing brief. 27-4-1995 P.O. on leave. 25-5-1995 Four P.Ws. in attendance. One of the defence counsel absent 7-6-1995. Accused Muhammad Iqbal moved a transfer application. Directed to produce copy thereof. Remaining evidence, however, ordered to be summoned. 21-6-1995 Four P.Ws. present. Counsel for some of the accused refused to cross-examine the P. Ws. having not been instructed by senior so to do. Prosecution objected to the case being adjourned. Case adjourned with direction to accused to produce their counsel on next date. 5-7-1995. Four P.Ws. present. One of the defence counsel busy in High Court. 19-7-1995. One P.W. in attendance. None of the defence counsel, however available. 7-9-1995. Four P.Ws. present. Case adjourned on application of defence counsel that he was ill. Adjournment objected to by prosecution with plea that defence counsel earlier appeared in bail matter in the day. 20-9-1995 Two P.Ws. present. Defence counsel not available. Case kept pending till Late hours. Application for adjournment submitted on behalf of defence counsel. Other defence counsel never turned up. Case adjourned with the observation that accused Muhammad Iqbal was intentionally delaying trial of the case. 21-9-1995. Two P.Ws. in attendance. Application for adjournment submitted on behalf of defence counsel. He, however, was present in the morning. Bail of accused Muhammad Iqbal cancelled finding that he was mis-using the concession. Then defence counsel appeared but expressed inability to cross-examine P.Ws. for his ailment. Case adjourned for date of choice of defence counsel. 5-10-1995 Five P.Ws. in attendance. Defence counsel requested for adjournment for his post-operation problem. 9-10-1995 Five P.Ws. in attendance. Stenographer of Court on leave. 10-10-1995 Five P.Ws. present. Defence counsel not available 11-10-1995 Five P.Ws. in attendance. Defence counsel not available. 12-10-1995. Three P.Ws. present. One defence counsel not available and other refused to cross-examine P. Ws. Bail of accused of the counsel cancelled. Case fixed at District Headquarters. Observed that defence counsel was not cooperating. Also observed that accused were delaying trial of case. 15-10-1995. P.O. on leave. 16-10-1995. P.O. on leave. 17-10-1995 Three P.Ws. in attendance. Defence counsel applied for adjournment being busy in High Court. 18-10-1995. Three P.Ws. present. Defence counsel did not appear. Observed that he was not cooperating either at District Headquarters or at Tehsil Headquarters. Accused burdened with costs. 22-10-1995. Defence counsel made statement that accused had taken away brief of case from him. His Wakalatnama accordingly cancelled. Accused requested for time to engage counsel. 23-10-1995. Three P.Ws. in attendance. Accused not engaged counsel stating that their parents had not cooperated with them. Observed that they did engage counsel for moving transfer application and also that they were intentionally using delaying tactics. Burdened with costs and allowed time to engage counsel. 24-10-1995. Three P.Ws. in attendance. Accused did not produce counsel. State counsel provided with direction to prepare the brief for next date. 26-10-1995. Accused Iqbal submitted an application stating to have moved transfer application in the High Court and therein stay having been granted. 30-10-1995. Accused directed to produce order of Hon'ble High Court. 15-11-1995. On accused information that Hon'ble High Court fixed his application for 20-11-1995, case adjourned. 10-12-1995. P.O. on leave. 3-1-1996. Defence counsel submitted that Hon'ble High Court stayed proceedings of the case. 15-1-1996. Accused Muhammad Iqbal and Muhammad son of Amir requested for time to engage counsel as their counsel had been elevated to the Bench. 31-1-1996. Accused did not engage counsel and requested for adjournment. Last opportunity allowed. Now the case is fixed for 15-2-1996.

3. It is contended by the learned counsel that the petitioners are behind the bars since 11-1-1992 and delay in the conclusion of the trial cannot be attributed to them. At the most, the petitioners delayed the proceedings for one year and seven months. Even if, this period is excluded from the total detention of the petitioners in jail as under-trials, still their case falls within the ambit of statutory period of two years and they are entitled to the grant of bail on this ground. The progress of the case was not delayed due to the act of the petitioners or any person acting on his behalf, but due td the lethargic attitude of the prosecution, as it remained insensitive towards the progress of this case.

4. Learned counsel for the State has opposed this bail application and submitted that fairly and squarely the petitioners are responsible for the delay in the conclusion of the trial; hence they are not entitled to the relief under the third proviso to subsection (1) of section 497, Cr.P.C. The learned counsel for the complainant submitted that perusal of the record would show that counsel for the petitioners did not deliberately appear before the trial Court when prosecution witnesses were summoned and this happened as many as 27 times in this case; it is a case of unique nature in which 67 adjournments were given to the defence counsel. The adjournments which occasioned on account of non-presence of the presiding officer, cannot be attributed to the prosecution because it is settled principle of law that act of the Court will not harm anybody. The conduct of the petitioners as well as their counsel is not praiseworthy, as whenever the witnesses appeared for evidence, who are ladies, the petitioners either moved a transfer application to block the progress of the case or their learned counsel deliberately avoided to put in appearance. The learned trial Judge in order to decide the case expeditiously and to ensure the presence of the accused, who were on bail, cancelled their bail, but they again got themselves released on bail from the High Court by giving an undertaking that in future the petitioners shall not cause any delay directly or indirectly in the conclusion of the trial. Unfortunately, after getting the decision in their favour for bail, neither the accused nor their learned counsel adhered to their own commitment. This order was passed on 3-12-1995, and- thereafter on 3-1-1996, the defence secured adjournment on the ground that the High Court had stayed the proceedings on a transfer application, though the said application was dismissed on 3-12-1995. On 15-1-1996, Muhammad Iqbal and Muhammad son of Amir sought adjournment to engage counsel and the case was adjourned to 15-2-1996. Even thereafter no progress was made due to the conduct of the accused and their learned counsel. It is submitted by the learned counsel that in this state of affairs, it were the petitioners who deliberately delayed the progress of the case and they are not entitled to the concession of bail on statutory ground, as contemplated in third proviso to section 497(1), Cr.P.C.

5. I have heard the learned counsel for the parties at length and have perused the record. For the proper appreciation of the respective contentions of the learned counsel for the parties, it would be useful to reproduce the said provision in extenso, which reads:

"Provided further that the Court shall except where it is of 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 or in exercise of any right or privilege under any law for the time being in force, direct that any person shall be released on bail-- (b) who being accused of any offence punishable with death, has been detained for such offence for a continuous period exceeding two years and whose trial for such offence has not concluded." The perusal of the record shows that in this case, the learned defence counsel who are officers of the Court have deliberately created impediment in the disposal of the trial. On 27 dates of hearing when the prosecution witnesses appeared for getting their evidence recorded, the learned defence counsel on one pretext or the other, refused to cross-examine them or sought adjournment that they cannot be cross-examined on that date, which is a glaring example of deliberate delay on the part of the accused and their counsel. Treating this case, like a civil suit, they sought adjournments on each and every pretext. The record shows that even the learned trial Judge was compelled to cancel the bail of co- accused to the petitioners in order to ensure their presence. However, they were bailed out by this Court on the assurance that they shall not cause any hindrance either directly or indirectly, in the conclusion of the trial. Unfortunately, even this commitment was not honoured by the accused or their counsel. Even the conduct of the learned defence counsel is not praiseworthy. They instead of facilitating the expeditious disposal of the case tried their level best to hinder progress of the case on one pretext or the other. After Independence, numerous murder trial cases came to the notice of the superior Courts where undertrial prisoners were languishing in the jail for many years for no fault of theirs, without any meaningful progress in the trial due to the unconscious and lethargic attitude of the prosecution, as according to the unamended section 497, Cr.P.C., the Courts were helpless to grant relief to the sufferers, they made observations that section 497, Cr.P.C., be suitably amended to cater for the need of those undertrial prisoners who are languishing in jail without trial and delay is more than 2/3 years. Even the legal fraternity passed resolution in support of those observations asking the Legislature to suitably amend section 497, Cr.P.C. In order to ameliorate the suffering of those unfortunate under-trials, third proviso was added to section 497, Cr.P.C., which gave powers to the Courts in cases of extreme hardship, where delay is not caused by the act of the accused or any person acting on their behalf, to grant bail on statutory ground. In the present case, the petitioners are themselves responsible for the delay in the progress of the trial, as sometimes co-accused of the petitioners, who are on bail, did not appear and most of the time was consumed by the unprofessional conduct of the learned defence counsel, as when the eye-witnesses were present, the learned defence counsel either did not appear before the trial Court or refused to cross-examine the witnesses, as is apparent from the letter of the learned Additional Sessions Judge bearing No.ASJ/120, dated 19-9-1995, addressed to the Sessions Judge, Sheikhupura showing his helplessness and seeking guidance from him regarding delaying tactics in the trial of the aforesaid case. In these circumstances, the petitioners are not entitled to the relief of bail on statutory ground which is meant only for those undertrial prisoners who are languishing in jail for no fault of theirs; hence this petition being devoid of force is dismissed. The perusal of the record shows that vide order dated 18-2-1996, the record of the trial Court was summoned for 4th March, 1996. Thereafter, the record remained in this Court and due to this fact also, the trial Court did not proceed. In the circumstances it is directed that the record of the trial Court be sent back immediately through a special messenger. The learned trial Judge is directed to decide this case on priority basis, even if he has to take day-to-day proceedings. N.H.Q./M-147/L Bail refused.