ORDER SHEET
IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.
Cr. B.A No. 1097 of 2011
Shahan and another.…..…………...….…………….….Applicants
Versus
The State…………………….….…….………….………..Respondent
Mr. Maqbool Ahmed Awan Advocate for the Applicants.
Syed Mushtaque Hussain Shah and Miss Rizwana
Jabeen Siddiqui Advocates for the Complainant.
Mr. Sardar Ali Shah, APG for the State.
Date of hearing: 23rd April, 2012.
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Muhammad Ali Mazhar J., The applicants have applied bail in Crime No.10 of 2009, lodged under Sections 302, 324, 147, 148 & 149 PPC, at Police Station, Andal Sundrani.
2. Succinctly, the facts of the prosecution case are that complainant Abdul Hameed lodged the FIR on 9.2.2009 stating therein that Hameed was his elder brother. On 8.2.2009, the complainant along with his brother Hameer, cousins Muslim and Muhammad Harif Chachar went to irrigate their land and when at about 0800 hours, they reached at main gate, they saw and identified in the light of bulbs that accused Shahan, Abdul Rehman, Mehboob, Shah Ali, Shaman, Abdul Qadeer and two unidentified persons armed with Kalashnikovs came there. Accused Shahan and Abdul Rehman gave Lalkara and asked Hameeer that he had got implicated their persons in the cases, therefore, they will not spare him. Then all above named accused persons with intention to commit their murder, made straight fires with their KKs upon the complainant party, which hit Hameer who fell down while complainant and PWs fell down in the water course. They raised cries which attracted villagers who came but on seeing them, accused persons went in the house of Mohammad Umar Chachar. The complainant found that his brother Hameer had sustained three fires from his left side and three fires from right side entry in the cest. Blood was oozing and he was dead.
3. Earlier, the applicants moved bail application in the trial court which was dismissed on merits. Thereafter, applicant Shahan moved bail application No. 752 of 2009 in this court which was not pressed vide order dated 27.10.2009. Again the applicant Mehboob moved bail application No.286 of 2010 which was disposed of in view of the directions given by this court to the trial court in the bail application of applicant Shahan to conclude the trial within a period of four months.
4. The learned counsel for the applicants argued that the applicants have been falsely implicated and there are no reasonable grounds to believe that they have committed any offence. The applicants were arrested and the charge was framed on 7.10.2009 and since then the matter is lingering on and there is no possibility of conclusion of trial in the near future. The applicants are behind the bar for last more than two years and no delay can be attributed to the applicants. The learned counsel relied upon the amendment made under Section 497 Cr.P.C. by virtue of Code of Criminal Procedure (Amendment) Act, 2011 and argued that delay in the trial has not been occasioned by an act or omission of the applicants and since they are in custody for last two years, therefore, they are entitled to be released on bail. He further argued that the applicants are neither previously convicted for an offence punishable with death or imprisonment for life nor they are hardened, desperate or hardened criminals. He further argued that expeditious and fair trial is fundamental right of the applicants. It was averred that even the applicants have good case on merits but this bail application has not been moved on merits, but on the ground of statutory delay and hardship. The learned counsel relied upon my own order reported as Zameer v. The State (2012 YLR 477). In this case bail was granted on the ground of statutory delay but the facts are highly distinguishable as in that case learned trial court itself observed in the order rejecting bail on the ground of statutory delay that on 24 dates, custody of accused was not produced by jail authorities and delay in production of UTPs was attributed to the accused persons, on which they had no control.
5. Conversely, the learned counsel for the complainant argued that it is clearly reflected from the case diaries that the applicants are instrumental for causing delay in the trial. Applicants sought numerous adjournments on various grounds and even they failed to engage counsel for a considerable period of time. He further argued that there is no delay on the part of prosecution and it was further averred that mostly complainant and P.Ws attended the court but for one or the other reasons, the applicants avoided the hearing in order to prolong the proceedings so that they may apply bail on the ground of statutory delay which right is in fact not available to the applicants keeping in view their track record.
6. The learned APG for the State argued that though by virtue of amendment made under Section 497 Cr.P.C, delay in trial gives right to the applicants to apply bail but the amendment made under the law makes it clear that before approaching or obtaining bail on statutory ground, it is incumbent upon the applicants to prove their bona fide that delay in the trial, if any, was not caused or occasioned by any inaction of the applicants but they diligently pursued the proceedings and tried their level best to conclude the trial.
7. Heard the arguments. No doubt by virtue of amendment made under Section 497 Cr.P.C, it is provided that court shall except where it is of the opinion that the delay in trial of the accused has not been occasioned by an act or omission of the accused or any other person acting on his behalf direct that any person shall be released on bail who being accused of any offence punishable with death, has been detained for such offence for a continuous period exceeding two years and in case of a woman exceeding one year and whose trial for such offence has not been concluded. In the same amendment, it is further provided that provisions of foregoing proviso 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 hardened criminal or accused of an act of terrorism punishable with death. It is clear from the aforesaid amendment that right of bail on the ground of statutory delay has been created but before granting bail to any person on the ground of statutory delay it is incumbent upon the court to first reach to a positive conclusion that the delay in the trial has not been occasioned by an act or omission of the accused or any other person acting on his behalf, which means that if the accused or his counsel both found instrumental for the delay, benefit of statutory delay cannot be claimed as a matter of right. This benefit under the law has been provided as a remedial measure to a person who found diligent in pursing his case but the trial could not be concluded for some reasons within the stipulated period of time without his negligence or recklessness or delaying tactics and in order to alleviate his misery, depression and despondency, the legislature restored the provision for seeking bail on the ground of statutory delay. This provision has not been restored with the intention to grant the bail on the ground of statutory delay to every person since the trial is not concluded without first determining his bona fides.
8. The learned counsel for the applicants filed case diaries of trial court which shows that interim challan was submitted on 2.3.2009 and final challan was submitted on 11.4.2009. Charge was framed on 7.10.2009, thereafter charge was amended on 21.4.2010 on the arrest of applicant Mehboob. Record further shows that since the date of framing of charge till 16.6.2010, applicants failed to engage any counsel to defend their case. First time on 16.6.2010, they requested the court for time to engage Advocate, thereafter almost 10 dates were passed but both the applicants did not engage their Advocate to defend the case. On 21.10.2010 again they were directed by the court to engage counsel but the case diary dated 26.3.2011 shows that the applicants failed to engage their counsel and filed adjournment application which was allowed as last chance. Till 21.4.2011, both the applicants failed to engage their counsel. Even an offer was made by the court that the applicants may be provided advocate on state expenses, but they clearly refused and said that they will engage Advocate of their own choice to defend them and sought time again and in the larger interest of justice, they were allowed time to engage counsel. Case diary dated 17.8.2011, again shows that applicants sought time to bring their counsel and on their request case was adjourned to 9.9.2011 for evidence. Case diary dated 29.9.2011 further shows that Mr. Maqbool Ahmed Awan appeared for the applicants, which is in fact first date when according to case diaries, applicants were represented by their counsel in the main case. The track record of the present applicants clearly demonstrates that they avoided engaging counsel for a long time which shows their own negligence and recklessness in pursuing their case. Even they denied to have services of counsel on State expenses which shows that they had sufficient means to arrange counsel fee. Had they intended to pursue and defend their case diligently and assiduously, they could have easily engaged counsel much earlier even on the date when the charge was framed, but on the contrary, record reflects that in the main case their counsel caused his appearance first time on 29.9.2001.
9. After considering previous case diaries it is clear that the applicants are themselves instrumental for the delay and this is not a fit case to enlarge the applicants on bail on the ground of statutory delay in pursuance of amendment made under Section 497 Cr.P.C. So far as argument of the learned counsel for the applicants that earlier also this court in bail application No. 643 of 2010 directed the trial court to conclude the trial within a period of four months is concerned, I am of the firm view that though the directions were given on 17.9.2010 but it is also a matter if record that for a considerable period of time, the applicants failed to engage counsel, therefore, directions, if any, were of no use as the same became redundant due to non engagement of counsel by the applicants. In the case of capital punishment despite directions by this court, the learned trial court could not conclude the trial against the applicants without giving an ample opportunity to engage counsel.
10. As a result of above discussion, I do not find that at this stage that the applicants are entitled to be enlarged on bail on the ground of statutory delay. Bail application is accordingly dismissed. However, the learned trial court is once again directed to conclude the trial within a period of three months as now both the applicants have engaged their counsel. However, it is further clarified that if trial is not concluded and judgment is not passed within a period of three months, the applicants may move fresh bail application on the ground of statutory delay, provided that during the period of this direction, applicants will not seek any adjournment and their Advocate will appear regularly in the court without seeking any unjustified adjournment. The case pertains to year 2009, therefore, it is expected that learned trial court shall apply all best possible efforts to proceed with the case and in case prosecution is failed to produce PWs, the learned trial court shall apply all coercive measures, as provided under the Criminal Procedure Code for ensuring presence of witnesses and shall conclude the trial and pass the judgment within a period of three months.
Sukkur
Dated.1.6.2012 Judge