IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Bail Application No. S- 404 of 2020
Applicant: Nazir Ahmed son of Paruddin Brohi, Through Mr. Athar Abbas Solangi, Advocate.
Complainant: Ghulam Murtaza, through Mr. Ghulam Rasool Narejo, Advocate.
State: Through Mr. Muhammad Noonari, Deputy Prosecutor General.
Date of hearing: 29-10-2020
Date of order: 29-10-2020
O R D E R
Zulfiqar Ali Sangi, J.- Applicant Nazeer Ahmed Brohi, seeks his post arrest bail in F.I.R No.55/2015, registered at Police Station Ratodero, for offencesunder sections 302,109,148 and 149 PPC.
2. As per FIR, applicant Nazir Ahmedarmed with repeater made straight fire upon father of complainant namely Ghulam Mustafa, which hit him and accused Aijaz also straight fired with his repeater upon his father Ghulam Mustafa who succumbed to the injuries. The incident was witness by the complainant, Altaf Hussain and Ghulam Nabi. After investigation case was challaned. Subsequently, the applicant was arrested on 09.12.2016. Earlier his bail application was declined by this Court on merits vide order dated 10.12.2018, thereafter, applicant preferred this application only on the ground of hardship.
3. Learned counsel for the applicant submits that charge was framed on 25.10.2017 and still the trial has not been concluded; that applicant was arrested on 09.12.2016 and remained in jail without any fault on his part in conclusion of the trial. He further submits that this is a good case of hardship and applicant is entitled for grant of bail. In support of his contention he has relied upon case of Adnan Prince v. The State through P.G., Punjab and another (PLD 2017 Supreme court 147).
4. Learned Deputy Prosecutor General, has opposed the grant of bail on hardship ground and submitted that on each and every date the witnesses do appear before the trial court; that the Chief-Examination of witnesses was recorded and due to adjournments filed on behalf of accused cross-examination was not conducted. In support of his contentions he relied upon the case of TallatIshaq v. National Accountability Bureau through Chairman, and others PLD 2019 Supreme Court 112).
5. Learned counsel for the complainant had adopted the arguments of learned DPG and further submitted that at the first instance the applicant was absconder for about 21 months and subsequently, was arrested and the witnesses are appearing before the trial court and their chief-examination was recorded but they were not cross examined due to filling adjournment applications on behalf of the applicant and the prosecution is not at fault in conclusion of the trial and he prayed that bail application of the applicant may be dismissed.
6. I have heard arguments of learned counsel for the parties and perused the record with their able assistance.
7. Admittedly first bail application was declined by this court on merits vide order dated 10.12.2018, thereafter, the applicant moved his second bail application before the trial court on the ground of hardship which was declined vide orderdated 17.7.2020 after such he approached this court for bail on the ground of hardship. Learned trial court in the order dated 17.7.2020 in paragraph No.5 had observed as under:-
“Further perusal of case diaries reveals that after framing of amended charge i.e.25.10.2017, this case has been adjourned for 64 times and it is surprising to note that defense counsel remained absent on 50 date of hearings, while complainant and some of the P.Ws have been attending hearings of the case almost on each and every date, since the day the charge was framed in the matter. Learned defense counsel for accused appeared only on 14 date of hearings out of which on eight date case was adjourned on the request of defense side”.
8. Reports were called by this Court vide order dated 1.10.2020 from concerned SSP and the trial court, which have been furnished. Report submitted by SSP, Larkana showed that theapplicant is involved in the following cases:
|
S# |
FIR No. |
Under Section |
Police Station |
|
1. |
20/2007 |
324 PPC |
Ratodero |
|
2. |
180/2007 |
17/3 H.O |
Ratodero |
|
3. |
129/2008 |
380 PPC |
Ratodero |
|
4. |
90/2009 |
324 PPC |
Ratodero |
|
5. |
07/2011 |
506/2 PPC |
Ratodero |
|
6. |
110/2013 |
302 PPC |
Ratodero |
|
7. |
45/2015 |
302 PPC |
Ratodero |
|
8. |
15/2007 |
17/3 HO |
Nabi Shah District Shikarpur |
|
9. |
23/2007 |
302 PPC |
Dakhan District Shikarpur |
|
10. |
49/2007 |
302 PPC |
Garhi Yaseen District Shikarpur |
9. Report of the trial court dated 6.10.2020, submitted before this courtwas also examined which reads as under:-
“Prosecution has examined the complainant Ghulam Murtaza and later on he was cross examined, prosecution also examined PWs Altaf Hussain and Ghulam Nabi, but their cross examination was reserved on filing adjournment application by the learned defence counsel. On 27.8.2019 R&Ps of this case were received by this court. In this case complainant Ghulam Murtaza and PWs Ghulam Nabi, Altaf and Wazir Ahmed are attending the court but their evidence could not be recorded due to absence of learned defence counsel and filing adjournments on behalf of accused Nazir Ahmed. Now case is fixed on 21.10.2020 for evidence, however summon is being issued against remaining PWs”.
10. Perusal ofthe report submitted by learned trial court dated 6.10.2020, shows that prosecution examined PWs Altaf Hussain and Ghulam Nabi but their cross examination was reserved on the adjournment applications submitted by the defence counsel. It further reveals that the witnesses were in attendance but their cross examination was not conducted which caused delay in conclusion of the trial.In case of Babar Hussain V. The State and others (2016 SCMR 1538),Honourable Supreme Court of Pakistan has held as under:-
“4. We have heard the parties’ Counsel as well as the learned Law Officer and have perused the record. We are of the considered view that even after laps of two years, the conduct of an accused seeking adjournments can be taken note of and bail can be denied by a Court even on the statutory ground. We have noticed that adjournments were sought and even the cross-examination of the eye-witnesses was not conducted by the petitioner’s counsel, for which no plausible explanation has been offered. In these specific circumstances, we do not find the petitioner to be entitled to the concession of bail on statutory ground as a matter of right.”
11. It is settled by now that conduct of the accused was to be seen if he had taken the ground of statutory delay/ hardship, while deciding bail on statutory ground/ hardship, such as whether delay was by design by adopting various methods. If the court reached the conclusion from any source that delay was designed by the accused, then bail should not be granted even on ground of statutory delay/ hardship. Prima facie, in the present case conduct of the accused by moving frequent adjournments, caused delay in conclusion of the trial as such applicant is not entitled for grant of bail on the ground of statutory delay/ hardship. Resultantly, this application is dismissed. However, trial court is directed to conclude the trial within three months from the date of receipt ofthis order without granting any unnecessary adjournment to the parties and proceed with the matter expeditiously. The trial court if felt necessary then issue coercive processagainst the remaining PWs. In case the defence counselfails to cross examine the witnesses on any of the ground which is not sufficient to adjourn the matter than trial court may appoint an advocate for applicant on the state expensesin accordance with law and proceed with the matter.
12. These are the reasons of short order dated 29.10.2020.
J U D G E