2010 PLP 3164 (YLR)

CH. IFTIKHAR HUSSAIN, J.

Petitioner Shahzad alias Sajid by way of the instant petition has prayed for post-arrest bail in case F.I.R. No. 405 registered under sections 324, 33-A(ii), 337-F(iii), 337-L(2)/324/148/149, P.P.C. with Police Station Chuchak, District Okara on 16-7-2007. Later on the police is stated to have added the offence under section 395 P.P.C. in the same.

2. The facts of the case stood recorded in the order dated, 16-12-2009, of his Lordship Sh. Najam-ul-Hasan, J on his earlier Criminal Miscellaneous No.13945-B of 2009, I, therefore, would avoid to repeat the same.

3. Now it has been argued on his behalf that twice the direction was issued by this Court to the learned trial Court to conclude the trial within specified period of time but such directions were never complied with and the position now is that there are two cases before the learned trial Court and one of these is a complaint and the other from the State and these are at very initial stages of summoning of the accused; that as per the scheme of the law firstly the complaint's case is to be dealt with and thereafter that of the State and in such circumstances, it seems that it may take years more to dispose of the same; and that in such situation, he has earned a right to bail, whereas except on one occasion, he made an application for transfer of the case from the earlier court and although the same was decided within a period of about two weeks and about 2-1/2 months had been consumed in reaching the file to the present court and this while his legal right to get changed his case as he was not satisfied with the state of affairs therein and so, this cannot be taken in the negative way to decline him the relief, particularly, when he is behind the bars since 20-2-2009 and so, his detention period is spread over a year and about two months and this is sheer a long period and the same gain significance in the backdrop of the matter of the conclusion of the trial, which is very far from sight.

4. Converse to that the learned DPG assisted by the complainant himself, who happens to be an Advocate submits that he (petitioner) earlier has been refused the relief of bail twice by this Court and each time the direction was given to the learned trial Court for conclusion of his trial but no doubt the same could not be done but it was mainly due to his fault or of his co-accused in the matter, as they are deliberately avoiding to appear there and their learned counsel also; and that he had remained an absconder and so, is not entitled to any indulgence by this Court.

5. I have carefully considered the submissions made on behalf of the parties and the record available gone into.

6. The above position shows that now the petitioner is not seeking bail on merits. His stance is that despite issuance of direction by this Court twice, his trial has not been concluded and this was for no fault of him and he, so has earned a right to bail. Such request of him has been opposed by the other side.

7. I find that he earlier through Criminal Miscellaneous No.6373-B of 2009, had sought for the similar relief. This time on 25-6-2009, his Lordship Muhammad Ashraf Bhatti, J, as he then was, has been pleased to refuse him the relief as his learned counsel opted not to press his said petition. His Lordship has been pleased to observe as follows:- "The request seems to be reasonable. This petition is disposed of with a direction to the learned trial Court to conclude the trial within a period of four months from today. Learned counsel for the complainant undertakes to produce all the witnesses on each and every date of hearing before the Court. In case the prosecution side fails to comply with the order and the trial Court may not be able to conclude the trial within the said period, the petitioner would be at liberty to move for bail afresh before this Court provided he has not hampered the trial".

8. It shows that his Lordship has been pleased to hold that in case his trial is not, concluded within the time prescribed, he would be at liberty to move this Court again provided he has not hampered the trial. It is every body's case that his trial has not been concluded within the time frame prescribed by his Lordship.

9. He then again come to this Court for the relief in that continuation. This time, his petition i.e. Criminal Miscel laneous No.13945-B of 2009, came up for hearing before his Lordship Sh. Najam-ul-Hasan, J. On 16-12-2009, he again was declined the relief but his Lordship has been pleased to issue direction for conclusion of his trial within three months from the date of his order. It may be relevant to mention here that his Lordship while issuing such direction has been pleased to observe: "Any delay caused by the petitioner or his counsel shall be considered a negative point for him" With the same his second appli cation was dismissed.

10. He now has brought this 3rd petition for the purpose before this Court. The above position shows that there are two cases pending before the learned trial Court. As per the scheme of law, perhaps the complaint's case has to be taken up first and thereafter that of the State. It also shows that his case is yet at very initial stage. It is for summoning of the accused. So, it is not hard to say that it's conclusion in the near future is not in sight. It may easily be said that it may take considerable time for the purpose.

11. He admittedly was arrested in this case on 20th January the last year. This period comes to about one year and two months.

12. It may be relevant to mention here that speedy trial is right of an accused. The same cannot be denied to him without any due or just cause. The other side has not been able to convince that he in any manner is responsible to occasion delay in the trial. It has mainly been argued by them that he has made an application for transfer of the case from the earlier court and, although, the same was decided within a period. of about two weeks and it but took about 2-1/2 months in reaching the files to the present Court and all such period is attributable to him as regards the delay and this may be considered a negative point to him in the matter as per the observation of his Lordship (Sh. Najam-ul-Hasan, J).

13. I am afraid that this may not be correct to say so. As to assert to seek a legal remedy is a right of every person. It cannot be taken as an act or omission on his part to occasion delay in a matter like the present one. Besides than this, it is every body's case that his transfer petition was disposed within a period of two weeks and it was accepted. The reaching of the files to it's destination in 2-1/2 months period can't be taken as a negative point to him in any manner.

14. This position on the record amply shows that every time the direction of this Court issued in his matter for expeditious conclusion of the trial has remained un complied with. He so, has earned a right to be released on bail as per the view expressed by the august Supreme Court of Pakistan in the case of Gul Hasan Penhyar v. The State (1997 SCMR 390) and Gul Muhammad and another v. The State (2003 MLD 154 Karachi).

15. I may mention here that law requires to treat the parties fairly and equally and no one should be given an upper edge over the other except within the frame of law and the interest of justice.

16. As regards the contention that he has earlier remained an absconder, the same now is absolutely irrelevant and without significance for the purpose of disposal of the instant matter. It is because of the fact that he now is admittedly behind the bars for a period of one year and about two months and his present matter i.e. plea for bail is not being discussed on merits and rather due to non-compliance of the directions of this Court. Even otherwise, such aspect of his matter was before his Lordship Sh. Najam-ul-Hasan, J, when he has refused bail on merits. So, now it cannot be taken into consideration and required no more discussion.

17. For all such reasons, I have been persuaded to hold that he has a case for bail now only on the score of non-compliance of direction of this Court issued more than once.

18. The petition, therefore, is accepted and he is admitted to bail subject to his furnishing bail bonds in the sum of Rs.5,00,000 (Rupees five lac) with two sureties each in the like amount to the satisfaction of the learned trial Court.

19. However, the learned trial Court is directed to take all possible measures to conclude his trial expeditiously and it would be under intimation to D.R. (Judl.) of this Court. H.B.T./S-59/L Bail granted.