ORDER SHEET
_____________________________________________________
ORDER WITH SIGNATURE OF JUDGE
_____________________________________________________
For hearing.
Notice issued to Special Prosecutor ANF for 4.12.2007 through bailiff returned served.
4.12.2007.
Mr. Syed Suleman Badshah for applicant in Cr. Bail Appln No. 803/2007.
Mr. Ejaz Khattak for applicant in Cr. Bail Appln No. 695/2007.
Mr. Ashfaq Hussain Rizvi Special Prosecutor for ANF.
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By this order I propose to dispose off Cr. Bail Application No. 803/2007 filed by applicant Imdad Khan and Cr. Bail Application No. 695/2007 filed by Bakht Muhammad arising out of Crime No. 26/2002 under section 6, 7, 8, 9, 12, 13, 14, 15, 19, 37 Control of Narcotics Substances Act 1979, registered at P.S. Clifton ANF, wherein applicants have sought post arrest bail.
Brief facts of the case are that on 6.6.2002 on spy information police party of ANF reached near round about Quaidabad bus stop Korangi Road, on pointation of spy informant saw applicant Imdad Khan was handing over one black hand bag to Bakht Muhammad, both were apprehended and on personal search of applicant Imdad Khan in presence of PC Muhammad Nasir and Muhammad Hassan Khoharo on search of bag 10 slaps of charas total weighing 10 Kgs were secured out of which 50 grams of charas from each slap was taken out for chemical examination. Mashirnama of recovery was prepared in presence of the mashirs. The applicants were brought to the police station, where First Information Report was lodged. After usual investigation the applicants were challaned to face the trial.
I have heard M/S Syed Suleman Badshah and Ejaz Khattak for applicants and Mr. Ashfaq Hussain Rizvi Special Prosecutor for ANF.
Learned counsel for applicants contends that the applicants were connected in the commission of the crime on 6.6.2002, when First Information Report was registered, they are languishing in jail since the date of alleged commission of the crime. They are in continuous custody from the last 5 years and 9 months, no progress has been made in the case by the trial Court except that the charge was framed on 2.7.2005. It is alleged that the status of the applicants is that of under trial prisoner and the charged is yet to be proved against them. It is never the intention of the law to keep under trial prisoner in jail custody indefinitely. In support of the above contention reliance is placed on the case of IMRAN AMIN VS. THE STATE (2004 MLD 1416), wherein the accused was found in possession of 5 Kgs of charas and was enlarged on bail on the ground that he remained for 33 months continuously in custody and no prosecution witness was examined. Whereas in case of DAVID DUFAUR VS. THE STATE (SBLR 2001 SC 132) accused was in continuous custody for more than 2 years therefore he was entitled to the grant of bail on the ground of delay also.
Learned Special Prosecutor ANF has contended that the applicants are not entitled to the concession of bail on the ground of delay in conclusion of the trial.
I have considered the arguments advanced at bar, perused the case law cited at bar. In the case of GHULAM ABBAS @ ABASI AND OTHERS VS. THE STATE (PLD 2005 KARACHI 255), it has been observed that the delay was acknowledged as the statutory right by the legislation but for the best known wisdom same has been withdrawn but bail has always been conceded by the apex Court even than such provisions were not available on statute book and even in some cases where such restrictions was imposed the Court conceded bail on the ground of undue delay. The principle as has been enunciated in the cases above appears to be that the delay in each case is to be judged and weighed on its own merits. Inordinate delay if not explained amounts to abuse of process of law even in cases of capital punishment where the prosecution is loath in submitting the challan, slow in producing witnesses, failed to produce the accused without any justification or delaying tactics used by any person other than the accused including the complainant. There is consensus of opinion that if the delay is so shocking and scandalous, it would amount to abuse of process of law. Even where the directions of the superior courts are not compiled with without any justifiable reason, same could furnish a good ground for bail. Even in cases, on the assessment of police papers and conduct of the prosecution it could be seen that there is no future likelihood of conclusion of the trial in foreseeable future as for instance where proceedings against absconding accused took time or where the trial for any other reason could not be concluded, Court may be lying vacant for long period or where dispute as to the jurisdiction of Court took unreasonably long time for decision as was held by the apex Court in the case of Muhammad Saeed Mehdi, the object of the criminal trial is to face trial and not to punish as under trial prisoner, expeditious trial was recognized right of accused person.
It is well settled law that fair and expeditious trial is right of an accused person. In case where the applicants accused are able to show that there is unexplained delay on the part of the prosecution to proceed with the case and conclusion of the delay is unexplained Court may enlarge the accused on bail. In both the Cr. Bail Applications the applicants are languishing in jail from the last 5 years and 9 months. Charge was framed yet not a single witness has been produced by the prosecution. From the case diaries the delay in conclusion of the trial cannot be attributed to the applicants. Accordingly applicants Imdad Khan and Bakht Muhammad were admitted to bail by a short order dated 4.12.2007 in a sum of Rs. 5,00,000/- (Rupees five hundred thousand only) each and P. R. bond in the like amount to the satisfaction of the trial Court. These are the reasons for the same.
ORDER SHEET
_____________________________________________________
ORDER WITH SIGNATURE OF JUDGE
_____________________________________________________
For hearing.
Notice issued to Special Prosecutor ANF for 4.12.2007 through bailiff returned served.
4.12.2007.
Mr. Syed Suleman Badshah for applicant in Cr. Bail Appln No. 803/2007.
Mr. Ejaz Khattak for applicant in Cr. Bail Appln No. 695/2007.
Mr. Ashfaq Hussain Rizvi Special Prosecutor for ANF.
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For reasons to be recorded later on, the applicants Imdad Khan and Bakht Muhammad are admitted on bail subject to furnishing solvent surety in a sum of Rs. 5,00,000/- (Rupees five hundred thousand only) each and P. R. bond in the like amount to the satisfaction of the trial Court.
J U D G E