ORDER SHEET
IN THE HIGH COURT OF SINDH AT KARACHI
Criminal Bail Application No.814 of 2015
Date Order with Signature of Judge(s)
For hearing of bail application.
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Mr. Muhammad Asif, advocate for the applicant.
Mr. Muhammad Khan Buriro, advocate for the complainant.
Mr. Muhammad Iqbal Awan, APG.
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The applicant, Agha Muneer Ahmed son of Agha Ahmed Yar Khan, is required in F.I.R. No. 25 of 2014, registered under section 324/109, PPC at PS New Town, on the allegation that he caused fire arm injury to one Agha Mashooq Ali alias Agha Imran Ali, while the injured was at the office of Sub-Registrar, Gulshan-e-Iqbal, situated inside the office of DC Karachi East, by firing at him which hit the injured in his abdomen. The complainant, Agha Manzoor Hussain Khan, is the brother of the injured, who lodged the said FIR on 30.01.2014 at 1530 hours about the alleged incident whereafter the accused was arrested on 21.3.2014 and is behind the bar since his arrest.
Learned counsel for the applicant submits that the applicant is innocent, who a man of is advanced age and an Advocate by profession, and has been falsely implicated in the aforesaid crime at the instance of the complainant in order to humiliate and revenge of the alleged maltreatment of their aunty at the hands of the applicant. It is contended by the learned counsel that the applicant has a good prima facie case on merits as the complainant is not the eye witness of the alleged incident, whereas, no eye witness of the alleged incident in the office of Sub-Registrar at DC’s (East) Karachi has been shown as witness by the prosecution. Per learned counsel, the applicant has already been acquitted in the connected F.I.R. No. 124/2014 registered under section 23(i)(a), SAA at PS Aziz Bhati, Karachi vide judgment dated 15.4.2015 passed by II Additional Sessions Judge, Karachi East in S.C. Case No. 786 of 2014. , whereas, the applicant was not arrested at the spot in spite of the fact that the alleged incident had taken place in the office of Sub-Registrar, Gulshan-e-Iqbal, situated inside the office of DC , Karachi East where armed police personnel perform guard duty and a large number of people are available there. Per learned counsel, there is no possibility of alleged incident having been committed by the applicant in the said place.
In addition to above, learned counsel for the applicant submitted that the applicant will also press instant bail application on the ground of statutory delay as, according to him the applicant is continuously behind the bar since his arrest on 21.3.2014 i.e. for more than one year and eight months, however, the trial of the case has not yet been concluded nor even single prosecution witness has been examined, including the complainant or the injured person, whereas, the delay is not attributable to the applicant / accused as not a single adjournment was sought by him. Per learned counsel, the case diary of the learned trial Court will substantiate the contention of the applicant, which, according to the learned counsel, reflects that the applicant is being produced in Court from jail custody and has never sought any adjournment, however, the matter is not proceeding for the reason that the Court is lying vacant and the incharge judge is busy in proceeding with his own cases. Learned counsel for the applicant has referred to the case diary of the learned trial Court from 28.4.2014 to 09.06.2015 and submits that the applicant has never sought any adjournment, whereas, the prosecution has not even been able to get the charge framed against the present applicant and no prosecution witness has so far been examined. Per learned counsel, the complainant party is very influential and simply wants to drag on the criminal proceedings against the applicant, and most of the time they managed to ensure that the applicant is not produced from jail as their uncle is Superintendent Jail.
Learned counsel for the applicant referred to first proviso to section 497(1)(A), Cr.P.C. and submits that there is inordinate delay in the trial of the present applicant, which has not been occasioned due to any act or omission on the part of the applicant / accused or any other person acting of his behalf, whereas, the applicant has not been accused of an offence punishable with death nor he is previously convicted of an offence punishable with death or imprisonment for life. Per learned counsel, there is no previous criminal record of the present applicant, who is neither a hardened, desperate or dangerous criminal nor he has committed an act of terrorism punishable either with death or imprisonment for life, therefore, the applicant is entitled to be released on bail on the ground of statutory delay. In support of his contention, the learned counsel relied on the following cases:
1. Sher Ali alias Sheri v. The State (1998 SCMR 190),
2. Zahid Hussain Shah v. The State (PLD 1995 SC 49), and
3. Abdul Razak Zangejo v. The State (PLD 2012 Sindh 218).
Conversely, learned counsel for the applicant vehemently opposed the grant of bail to the present applicant for the reason that applicant has been nominated in the FIR with specific role of having caused fire arm injury from his revolver to the injured Agha Mashooq Ali in his abdomen. He further submitted that the injured, namely, Agha Mashooq Ali, and one Wazir Haider are the eye witnesses of the incident, whereas, there is serious apprehension that if the applicant is released on bail he will again repeat the offence and might kill the injured and and may cause harm to the complainant also, who is the real brother of the injured. Learned counsel for the complainant further submits that the applicant has himself caused delay in conclusion of the trial as the applicant / accused could have moved an application for transfer of the case from the trial Court, which was lying vacant, to any other court, or could have made a request to the link / incharge judge to proceed with trial, however, neither any such application was made by the applicant nor it appears that such request was made to the link / incharge judge by the applicant / accused. Per learned counsel, delay, otherwise, cannot be attributed to the complainant as it is responsibility of the prosecution to proceed with the matter and produce the prosecution witnesses before the trial Court.
Learned APG could not controvert the submissions of learned counsel for the applicant / accused on the ground of statutory delay.
I have heard the learned counsel for the parties, the APG and perused the record and diary sheet of the trial Court submitted alongwith the instant bail application and have also examined the first proviso to section 497(1)(a), Cr.P.C..
It is an admitted position that the applicant was arrested on 21.3.2014 and is continuously behind the bars since then, whereas, even charge has not yet been framed nor any prosecution witness has been examined by the trial Court. The case diary of the learned trial Court, i.e. III Additional District Judge, Karachi East, in Sessions Case No. 1325 of 2014 in Crime No. 25 of 2014, registered under section 324/109, PPC at PS New Town, produced by the applicant, reflects that the applicant / accused is either being produced in jail custody or on some occasions his custody is not produced from jail, however, no reason for such non-production has been disclosed in the diary sheet. On a number of occasions, the case was adjourned due to the reason that the Court was lying vacant and the incharge Judge was busy with his own cases. There appears to be no effort on the part of the prosecution to seek transfer of the case to some other court or to make a request to the incharge Judge to proceed with the matter in accordance with law. The record clearly shows that no adjournment has been sought by the applicant / accused or anybody acting on his behalf. It has further been observed that the learned trial Court, vide order dated 30.5.2015, has dismissed the bail application of the applicant / accused, however, the trial against the applicant has not yet proceeded.
From perusal of first proviso to section 497(1)(a), Cr.P.C. it is clear that if delay in the trial of an accused, if any, is not occasioned by an act or omission of the accused or any other person acting on his behalf and the offence against the accused is not punishable with death and the applicant / accused is detained for such offence for a continuous period exceeding one year, provided that the applicant / accused is not previously convicted for an offence punishable with death or imprisonment for life, and there is nothing on record which may suggest that the applicant / accused is hardened, desperate or dangerous criminal or the accused has committed an act of terrorism punishable with death or life imprisonment, makes it a case for release of the applicant accused on bail on the ground of statutory delay irrespective of the merits of the case, which may otherwise disentitle the applicant accused from grant of bail on any other ground.
From the bare perusal of the hereinabove statutory provision and the case law relied upon by the learned counsel for the applicant, whereby it has been held that if a benefit extended by a statute the Courts cannot deny such benefit to the applicant / accused.
In the case of Shabeer v. The State (2012 SCMR 354), wherein Hon'ble Supreme Court while examining similar amendments introduced through Act VIII of 2011 in Section 497, Cr.P.C., has held that “having considered the submission made before us by the parties’ counsel, we have also perused the newly added provision to section 497, Cr.P.C. vide Act VIII of 2011, which entitles an accused for enlargement on bail, after having remained in custody for a continuous period exceeding two years unless in the opinion of the Court a hardened, desperate or dangerous criminal was accused for an act of terrorism punishable with death or imprisonment for life, which is not the position in the instant case.”
Similarly, in three other reported cases relied by the learned counsel for the applicant i.e. Ghulam Qadir alias Azeem and another v. The State (2010 MLD 1948), Ghulam Mustafa and 2 others (PLD 2011 Karachi 394), and Tariq Shah v. The State (2012 P.Cr.L.J. 634), three different judge of this Court, including the undersigned, have granted bail to the applicants on the ground of statutory delay without having recourse to examine the merits of the case.
Further reliance in this regard can also be placed on the above cases relied upon by the learned counsel for the applicant.
In view of the hereinabove facts and circumstances of the case, I am of the view that the applicant / accused has made out a case for grant of bail on the ground of statutory delay as the applicant is behind the bars for more than one year and the delay before the trial Court cannot be attributed to the applicant / accused or any other person acting on his behalf, therefore, the applicant / accused was admitted to bail in the sum of Rs.500,000/- with PR bond in the like amount, to the satisfaction of the trial Court, vide short order dated 22.10.2015. The above are the reasons for such short order.
Karachi, the 23rd November, 2015. Judge