1996 P Cr (PLP)

This authority in my humble view is, not helpful to the case of the accused/applicant. So far as this case is concerned the cross-examination was reserved at the request of the learned defence counsel and on 9-4-1995 and on 19-4-1995 the complainant could not be cross-examined due to the adjournment applications moved by the learned defence counsel. The case has proceeded and in examination-in-chief prima facie the complainant has fully implicated the accused/applicant and during investigation police has recovered British Passport No.700292180 of the applicant and Air France Ticket No.2-057-94-77892163-6 and pocket diary with D/Tikt.532-691784(A/Asia) valued Pak. Rs.57,000. (2) Muhammad Iqbal Zafar v. The State 1977 SCMR

474. The observation of the Honourable Supreme Court are as under:-- " .... According to the learned counsel for the State the investigation in the case had been completed and challan put in Court but he admitted that so far no sanction for prosecution of the Government servants had been obtained. He also admitted that there were about seventy prosecution witnesses in the case which involved a huge record. Under these circumstances the trial of the case in the Court of the Special Judge would take years to complete and we therefore, consider it a fit case .to allow bail to the accused who has already been in lock-up for sufficient time." In my humble view this authority is not applicable to the facts of the present case. Herein the case in hand the applicant is not a Government servant and sanction for prosecution is not required. Moreover charge-sheet has been submitted by the prosecution and case has proceeded in the trial Court where evidence of complainant has been recorded in which he has fully implicated the accused and cross-examination could not be carried on due to adjournment applications of the Lamed defence counsel. (3) Wazir Khan v. The State 1983 SCMR

427. The observations of the Supreme Court are as under:-- "We issued notice to the State and have heard both the learned counsel for the petitioner as well as the learned counsel appearing on behalf of the State. The latter informed that Muhammad Khan, co-accused who is a Naik in the Pakistan Army has, indeed not been apprehended and the reason for the inability of the police to arrest him is that the Military authorities have refused to surrender his custody. From this it is obvious that the delay which has occurred in the commencement of the trial is neither attributable to the petitioner nor to any other person acting on his behalf' and it is not proper that the petitioner should suffer merely because the police is unable to apprehend Muhammad Khan, co-accused. The petition is, therefore, converted into appeal and allowed. " This authority is quite different and distinguishable from the facts of the present case. In the cited case the custody of the person was to be taken from the Military Authorities whereas in the present case the accused has been charge- sheeted and the case has proceeded as already observed hereinabove in the earlier part of this order, therefore, in my humble view this authority is not applicable to the facts of the present case. (4) Tariq Butt v. The State 1990 SCMR 1090. The Honourable Supreme Court held as under:-- "There is no satisfactory explanation why the trial has not so far been concluded. Although it is said that some of the adjournments made by the trial Court were at the request of the co-accused of the petitioner, it is not however, the case of the learned Deputy Attorney-General that any of these adjournments was sought by or occasioned by the conduct of the petitioner. " This authority is also not favourable to the case of the applicant because here in this case three adjournments were obtained by the learned defence counsel and the witness could not be cross-examined. (5) Muhammad Ali Khan v. The State PLD 1991 Pesh.

66. A learned Single Judge of Peshawar High Court has held as under:-- "The petitioner was arrested on 28-12-1987 and his trial has not yet commenced. This delay is not shown to have been occasioned by any act or omission of the accused or any other person acting on his behalf within the contemplation of subsection (1) of section 497, Cr.P.C. Similarly the plea of the petitioner for bail does not also fall within the mischief of fourth proviso to subsection (1) of section 497 ibid. " This authority is also not applicable to the facts of the present case as mentioned hereinabove. The case was adjourned at the request of the learned defence counsel and whatever delay occasioned is due to the application of, the person acting on behalf of the accused. Mr. Muhammad Roshan Essani, the learned D.A.-G. has cited the following case-law. In the case of Akhtar Abbas v. The State PLD 1982 SC

424. The observations of the Honourable Supreme Court are as under:-- "We regret we are not impressed by these submissions, as, we find that the requirements of the law is not fulfilled in this case, as at least on eight occasions adjournments were sought by the defence for one reason or the other. In such a case it does .not appear to be the intention of the law to calculate the amount of delay caused by the defence. All that is necessary is to see whether the finalisation of the trial has, in any manner, been delayed by an act or omission on the part of the accused. In the present case, the delay is partly attributable to the accused. The submission that the date in question was not fixed for the hearing of the case is not correct. On the contrary, it is clear from the order sheet of the trial Court on these dates most of the witnesses were summoned and were present, but their examination had to be postponed owing to the request made by the defence counsel. " This authority is helpful to the case of the prosecution inasmuch as three adjournments were obtained by the defence counsel as such the cross- examination of the complainant could not be concluded. It would be pertinent to reproduce section 497(3):-- "Section 497(3).

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

(a) who, being accused of any offence not punishable with death, has been detained for such offence for a continuous period exceeding one year 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 whose trial for such offence has not be concluded: Provided further that the provisions of the third proviso to this subsection 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 involved in terrorism. " I have gone through the material placed with the case. According to the charge-sheet it is an admitted fact that sufficient quantity of heroin powder has been recovered from the possession of the accused/applicant who is holding British Passport bearing No.700292180. The documents including diary and domestic ticket and the record of Zeeshan Hotel, Karachi prima facie establish that accused is a member of a gang of the persons who are involved locally and internationally in the drug trafficking out of whom Faisal Ali Khan has been shown as absconder and according to D.A.-G. efforts are underway for his apprehension and one G. Shanon of Copenhagen was arrested by the authorities in Denmark and heroin was recovered and seized from him. The examination-in- chief of the witness is recorded on behalf of the prosecution in which he has fully implicated the accused/applicant. Case has proceeded and admittedly the cross-examination could not be carried on due to the adjournment applications moved by the learned defence counsel. The case-law cited by the learned counsel for the applicant is not helpful to the case of the applicant/accused. Whereas the case-law cited by the learned D.A.-G. is helpful to the case of the prosecution. Moreover, delay whatsoever occasioned is due to the person who was acting on behalf of the accused/applicant in getting adjournments. Consequently case for bail on account of delay is not made out and this application is dismissed. However, the trial Court is required to complete the trial within a period of four months from receiving the order by proceeding expeditiously/day to day in the matter. N.H.Q./K-4/K Bail refused.