ORDER SHEET
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Date Order with
signature of Judge
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FOR HEARING.
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28.05.2009
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Mr. Ajab Khan
Khattak, advocate for the applicant.
Mr. Fazal-ur-Rehman
Awan, advocate for the State.
*******
This is second bail
application under Section 497, Cr.P.C. moved by applicant Hashim in F.I.R.
No.85/2003 of Police Station Industrial Area, New Karachi. The accused has been
charged with the offences under Sections 396 & 397, PPC.
The applicant has
moved the first bail application before this Court on 23.04.2008, which was,
however, rejected on 13.06.2008 and the learned trial Court was directed to
conclude the case within a period of six months. Since then nearly one year has
passed but the case has not been concluded.
Learned counsel for
the applicant submits that this is a case of hardship as the proceedings of the
case have been inordinately delayed and that the State has no right to keep the
applicant behind the bar for an indefinite period without deciding the case
against him. Learned counsel for the applicant has relied upon various
authorities in support of his submission.
Learned counsel for
the State submits that this is an extremely serious case, whereby the
applicant/accused has committed murder and dacoity, which offence carries the
death penalty. He further submits that it may prejudice the prosecution case if
bail is granted at this stage. He has submitted that the best course for this
Hon’ble Court would be to refer this case back to the learned trial Court with
the direction to complete the case within stipulated period.
I have heard
learned counsel for the applicant as well as the learned State Counsel,
reviewed the documents on file and have also carefully examined the legal
authorities.
Firstly, I would
like to mention that no doubt this is a very serious case and in such cases
bail is rarely granted, especially where there appears to be strong linkage of
the accused with the crime. However, it is the obligation of the State to prove
its case against the accused beyond any reasonable doubts and until that time,
the accused is presumed to be innocent. In rejecting the bail by order dated
13.06.2008, this Hon’ble Court made the following observations.
“The expeditious
trial is the right of every accused and this is shocking that for the last
about five years only the complainant has been examined and record shows that
he was examined on 14.02.2007 and Mr. Siddiqui informed the Court that
thereafter, no PW was examined, which is apparently shocking.”
In essence, it is shocking that there is
undue delay in the trial of the case and it has not been concluded within a
period of six months as directed by this Court vide order dated 13.06.2008.
Nearly a year has passed yet the trial has not been completed. This is in
violation of the Court order dated 13.06.2008. I reviewed the case diaries
provided by the counsel for the applicant, which indicate that since the
passing of order dated 13.06.2008, the case before the trial Court was fixed
for hearing on 15 dates. However, nearly on all these occasions the case has
not proceeded due to no fault of accused. Out of 14 prosecution witnesses, only
4 witnesses have been examined. In the old law, an accused could be granted
statutory bail if the case has not been concluded within two years, provided
that delay in conclusion of trial was not on account of any fault of accused.
Such a provision has now been excluded and it seems that in the absence of this
provision, prosecution have no incentive to proceed with the cases
expeditiously. The accused is in jail for the last six years and I see little
prospect that the trial could be concluded in the near future, even if this
Court were to give further directions.
The Constitution of Pakistan provides that no person should be deprived of his liberty unless in accordance with law. The law, however, should be effective. If a person is detained under the law then he should be tried and dealt with expeditiously. To detain some one for over six years, as in this case, is an abuse of process of law by the prosecution, whose obligation is to ensure that the trial is expeditious. I placed reliance on numerous case-law cited by learned counsel for the applicant specially the case of HIDAYATULLAH VS. THE STATE (2007 YLR 1311), wherein it has been held that:
“S. 497---Penal Code (XLV of
1860), Ss-302, 337-H(ii), 148, 149, 114 & 34—Bail, grant of –Accused was
behind the bars for the last about four years but case had not proceeded
despite direction of High Court to the Trial Court that trial be concluded
within ninety days—Delay in prosecution of the case though no more was
available as statutory right of accused but grant of bail on the ground of
inordinate delay in conclusion of trial had always been
considered---Expeditious and fair trial was the right of every
accused---Purpose of trial was not to punish accused without trial---Inordinate
delay, if not explained, would amount to abuse of process of law even in cases
of capital punishment---Where directions of the Superior Courts were not
complied with without any justifiable reason, same could furnish a valid ground
for grant of bail---Order of the High Court having not been complied with and
the accused in counter case having got bail, accused was also entitled for
concession of bail on the ground of hardship---Accused was admitted to bail, in
circumstances.”
From the above authorities, it is clear
that the bail has been granted in hardship cases even in the cases where the
offences were of serious nature.
Based on the facts and circumstances of
this case and undue delay in trial due to no fault of accused, I hereby admit
the applicant/accused on bail on his furnishing surety in the sum of
Rs.2,00,000/- (Rupees Two Lac Only) and P.R. Bond in the like amount to the
satisfaction of the trial Court.
Notwithstanding the above order, this
should have no reflection in prosecution case on merits.
This bail application stands disposed of.