IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Cr. Misc. Application No. S-691 of 2011
Zameer and another…...……….………….…….…..Respondents
Mr. Ubedullah K. Ghoto Advocate for the Applicant.
Mr. Maqbool Ahmed Awan Advocate for the Respondent No.1.
Mr. Zulfiqar Ali Jatoi, D.P.G. for the State.
Date of hearing: 14th May, 2012.
Muhammad Ali Mazhar J., This Cr. Misc. Application has been brought under Section 497 (5) of CR.P.C for the cancellation of bail, granted to the respondent No.1 by this court on 28.10.2011 in Cr. Bail Application No. 675 of 2011.
2. Precisely, the facts of the case are that the respondent No.1 had moved a bail application in Sessions Case No.340/2008 (FIR.NO.68/2008, P.S Daherki) on the ground of statutory delay in the court of IIIrd learned ADJ, M.Mathelo which was dismissed vide order dated 5.7.2011, thereafter, the respondent No.1 applied for bail in this court on the ground of statutory delay and bail was granted to him vide order dated 28.10.2011.
3. The learned counsel for the applicant argued that the incident took place on 25.3.2008. The name of the respondent No.1 is clearly mentioned in the FIR with specific role. He further argued that it is well settled principle of law that while considering the bail plea on the ground of statutory delay, the court has to take into consideration the evidence collected by the prosecution. He further argued that the delay in the trial has been caused by the respondent No.1 on account of his own acts or omissions. The counsel for the accused obtained numerous adjournments. On 21.9.2011, examination-in-chief of the complainant was recorded in the trial court and the prosecution’s witnesses were present, but on the written request of the accused, the case was adjourned. It was further averred that from the perusal of the case file, it is clear that the prosecution is not at fault of delay in the conclusion of trial, mostly, the adjournments were sought by the defence counsel. He made much emphasis that bail granting order is patently illegal, erroneous, factually incorrect and perverse and is liable to be recalled. Lastly, it was contended that the respondent No.1 is a dangerous person, he is criminal type so also arrogant and he is oppressive to the complainant. In support of his arguments, he relied upon the following case law:-
1. 2009 SCMR 786 (Mst.Noor Habib v. Saleem Raza & others). In this case it was held by hon’ble Supreme Court that considerations for cancellation of bail are quite distinct from the considerations for grant of bail. Once bail has been granted by a competent court of law, strong and exceptional grounds are required for canceling the same. It has to be seen as to as to whether order granting bail is patently illegal, erroneous, factually incorrect and has resulted in miscarriage of justice.
2. 2010 SCMR 576 (Dadio v. Sobharo & another). In this case the cancellation was applied by the same applicant in the same crime number, wherein the co-accused Dadlo was granted bail on medical ground. The hon’ble Supreme Court held that bare reading of section 497(5) Cr.P.C. shows that jurisdiction to entertain an application for cancellation of bail is concurrent in nature, therefore, such application was rightly moved before the High Court, which has earlier granted bail to the petitioner. After granting bail on medical ground, it was observed that special concession granted to him would vanish the moment he was found to have recovered from such injury or ailment, which formed the basis for grant of bail to him on medical ground and it was found that his judicial custody would be no more detrimental to his health. Grant of bail to such an accused was not a State bounty in perpetuity, which once granted could not be withdrawn or cancelled.
· The case law referred to above is distinguishable though related to the same crime number, but in this case bail was granted on medical ground and not on the ground of statutory delay. However, the rule laid down that since the bail was granted by this court, hence application for cancellation of bail was rightly moved in this court is quite applicable.
3. 1985 SCMR 1509 (Abdullah v. State). In this case it was observed that the accused is in custody as UTP for the last three years. Period for which case was adjourned at the accused’s request, if excluded, accused had been behind bars for more than two and half years. State Counsel not in a position to give assurance as to when case would be heard. In this circumstances, the bail was granted to the accused.
· The aforementioned case law hardly provides any assistance to the case of the applicant rather it helps the case of respondent No.1.
4. 2004 SCMR 1160 (Nazir Ahmad v. Muhammad Ismail and another). In this case it was held that strong and exceptional grounds are required for cancellation of bail. What has to be seen is whether order granting bail is patently illegal, erroneous, factually incorrect and has resulted in miscarriage of justice.
· Though in the above case, the general guidelines had been formulated by the hon’ble apex court regarding the cancellation of bail but it pertains to the merits of the case and bail was not granted on the ground of statutory delay.
5. 1995 SCMR 1087 (Muhammad Younas v. State). In this case the hon’ble Supreme Court held that the High Court had cancelled the bail granted to accused on statutory ground by Sessions Court holding inter alia that the accused was responsible for delay of the trial. Defence on four occasions had requested for adjournment and the accused, therefore, was not entitled to the concession of bail.
· In this case, the question was involved that the learned single judge of High Court by means of order set-aside the order of the learned Additional Sessions Judge on the ground that the proviso 3rd and 4th stood omitted from the Statute, as such this ground was not available to the petitioner at the time of passing of the bail order. The hon’ble apex court held that there is no need to dilate upon the application of 3rd and 4th provisos. The above precedent is also distinguishable as now the provision regarding the bail on the ground of statutory delay is available under Section 497 CR.P.C.
6. 2003 P.Cr.L.J 73 (Behram v. State). In this case, the learned single judge of this court held that despite direction of High Court issued about two years back trial had not yet commenced and charge could not be framed within the last 18 months, period required for conclusion of the trial was not difficult to be predicted. Fair and expeditious trial was the fundamental right of the accused which could not be denied. Hardship suffered by the accused on account of delay was quite obvious and the same could not be overlooked. Hence the bail was allowed in this case.
· This case also does not support the contention raised by the counsel for the applicant rather it is helpful to the respondent No.1.
4. Conversely, the learned counsel for the respondent No.1 argued that the bail was granted to the respondent No.1 after considering the case diaries and it is clear that mostly delay was caused by the prosecution and not by the respondent No.1. He further argued that even in the bail refusing order passed by the sessions court it is clear that numerous time the custody of respondent No.1 was not brought by the Jail authorities. However, few dates were taken by the respondent No.1 which is quite normal for which the respondent No1 cannot be held responsible alone and cannot be blamed for the entire delay. Learned counsel further argued that no cogent ground has been raised in the application for cancellation of bail, which suffice to hold that the bail is liable to be recalled or the bail is liable to be cancelled.
5. The learned DPG is also of the view that the bail was granted after considering the entire facts and on the ground of statutory delay. It is apparent from the case diaries that the entire delay cannot be attributed to the respondent No.1 and no sufficient reason or ground exists to recall the bail order or to pass any order for cancellation of bail.
6. I have gone through the bail order in question. While granting bail, the complainant’s counsel was present and he was patiently heard and the case law relied upon by him was also discussed in the bail order. The learned counsel himself mentioned in the application that on various dates the respondent No.1 was not produced before the trial court. He further pointed out that the Presiding Officer of the court was on training in Shariah Academy at Islamabad from 26.2.2011 to 23.6.2011. He further pointed out that at least on four different dates the Presiding Officer was on summer vacations. Few dates were shown by the counsel on which due to transfer of Presiding Officer the court was vacant and on few dates the case could not proceed due to holiday. However, on few dates the defence counsel was called absent and the case was adjourned. According to the learned counsel of the applicant, nine dates were obtained by the accused persons.
7. The respondent No.1 was arrested on 04.10.2008 and charge was framed on 4.8.2009 and since then the matter was lingering on and the respondent No.1 was behind the bars for last three years. The respondent No.1 did not apply for bail to this court on merits but on the ground of statutory delay. Section 497 Cr.P.C. gives the right to apply bail on the ground of statutory delay provided that delay in the trial has not been occasioned by an act or omission of the accused or any other person acting on his behalf.
8. The learned Sessions Judge himself observed in his order rejecting the bail on the ground of statutory delay that after framing of charge on 4.8.2009, the trial court could not proceed the case at least on 24 dates due to non-production of one or the other accused including the respondent No.1 by the Jail authorities. It was further observed in his order that despite directions, the Jail authorities did not produce the accused and show cause notice was also issued. It was further observed from the case diaries that though charge was framed on the aforesaid date, many times, the matter was adjourned due to non-production of UTPs by the Jail authorities. On some dates custody was produced, but the prosecution witnesses were not present and some case diaries show that summons/bailable warrants of prosecution witnesses were issued to procure their attendance.
9. It is a matter of record that FIR was lodged on 25.3.2008 and the respondent No.1 was arrested on 4.10.2008. The bail was granted to the respondent No.1 on 28.10.2011. During this long period though mechanical calculation of adjournments sought by the respondent No.1 are not required to be made but it clearly visible that despite few adjournments, the entire delay in trial can not be attributed to the respondent No.1 and he should not suffer frustration and agony of protracted trial and remain behind the bars. The provision for seeking bail on the ground of statutory delay has been restored under Section 497 CR.P.C and or came into effect to alleviate the misery, despondency and desolation of a person who without any delay on his part facing the long-drawn-out trial and behind the bar for last two years but his trial could not be concluded. The learned counsel for the applicant has failed to point out any illegality in the bail order though he argued that the order was patently illegal, erroneous, factually incorrect and perverse. He further failed to point out that the respondent No.1 has misused the concession of bail. The applicant simply mentioned in the application that the respondent No.1 is very dangerous person, but he failed to point out any single instance to substantiate the allegation that the respondent No.1 ever misused the concession of bail.
10. At this juncture, I would like to refer to 2012 SCMR 354 Shabir V. State in which the hon’ble Supreme Court considered Section 497 Cr.P.C with its amended provision whereby the right of bail on the ground of statutory delay was restored to the Statute Book and it was held that the petitioner was arrested on 14.11.2007 and since then he is in custody and despite framing of charge in Session Case on 29.7.2008 and amended charge on 13.6.2009, yet proceedings have not been concluded nor there is any possibility of conclusion of trial in near future. The criminal petition was converted into appeal and the petitioner was admitted to bail on the ground of statutory delay.
11. The principles governing the grant of bail and the cancellation of bail substantially stand on different footings. Courts have always been slow to cancel bail already granted as the liberty of a person cannot be curtailed on flimsy grounds. No interference with an order of bail is required to be made unless the order lacks in reasons or is perfunctionary in nature. Once bail has been granted, the prosecution should make out strong case for cancellation not by making allegation alone but by giving substantive proof of such allegation. The cancellation of bail is harsh order because it interferes with liberty of an individual hence it must not be resorted to lightly and power to take back in custody is to be exercised with due care and circumspection. I am also fortified by the dictums laid down by the honourable Supreme Court reported in 2009 SCMR 786, 2004 SCMR 1160, 2005 SCMR 1539, 1994 SCMR 1064 and 2004 SCMR 231 in which it was held that considerations for cancellation of bail are quite distinct from the considerations for grant of bail. Once bail has been granted by a competent court of law, strong and exceptional grounds are required for canceling the same. It has to be seen as to whether order granting bail is patently illegal, erroneous, factually incorrect and has resulted in miscarriage of justice. Section 497 (1) CR.P.C prohibits the grant of bail for offenses punishable with death or imprisonment of 10 years or over. Section 497 (5) CR.P.C does not command the court to cancel the bail even when the offence is punishable with death or imprisonment for life, and even if the grant of bail is prohibited under Section 497 (1) CR.P.C, the discretion is left in the court under Section 497 (5) CR.P.C which is pari meteria with the principles which apply to the setting aside of the orders of acquittal.
12. In my bail granting order, I have discussed various provisions of National Judicial Policy, 2009 which is relevant to the “Expeditious Disposal of Cases” and its Clause No.1, relates to “Short Terms Measures” . Keeping in mind the aforesaid Judicial Policy, I directed the learned trial court to conclude the trial within a period of two months but still trial has not been concluded. The learned trial court is once again directed to conclude the trial within a period of three months and submit the compliance report to the Additional Registrar of this court.
13. As a result of above discussion, I feel no hesitation to hold that the learned counsel for the applicant failed to demonstrate that the bail grating order is patently illegal, erroneous, factually incorrect and has resulted in miscarriage of justice. No reasonable ground exists for the cancellation of bail granted to the Respondent No.1. Consequently, this Criminal Miscellaneous Application is dismissed.