ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

 

Criminal Bail Application No. 583 of 2016

 

Applicant:                             Rehan Khan Niazi s/o. Yousuf Khan Niazi,

                                                through Mr. Muhammad Khalid Khan,   Advocate.

 

Respondent:                          The State, through Ms. Rahat Ehsan, DPG.

 

Complainant:                        Mr. Javed Haleem Advocate in person.  

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Date of hearing:                    13.02.2017

Date of order:                        13.02.2017

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O R D E R

 

ZAFAR AHMED RAJPUT, J:-       Through instant criminal bail application,  applicant/accused Rehan Khan Niazi s/o. Yousuf Khan Niazi seeks post arrest bail on ground of statutory delay in Crime No. 340 of 2011, registered at P.S. Defence, Karachi under Section 302/34 P.P.C. On merit, his first bail application in Session Case No. 411 of 2011 was dismissed by the learned IVth Additional Sessions Judge, Karachi-South, vide order dated 11.07.2012; second bail application bearing No. 869 of 2012 was dismissed by this Court, vide order dated 30.08.2012; third bail application was dismissed by the learned 1st Additional Sessions Judge, Karachi-South, vide order dated 08.01.2014; and fourth bail application bearing No. 203 of 2014 was dismissed by this Court, vide order dated 23.12.2015. Thereafter, the applicant/accused filed a bail application, on statutory ground in Sessions Case No. 411 of 2011, which was dismissed by the learned 1st Additional Sessions Judge, Karachi-South, vide order dated 15.02.2016.

 

2.         As per prosecution case, in between the night of 5th and 6th September, 2011, the applicant/accused alongwith co-accused Tazeen alias Jasmine, in furtherance of their common intention, after administering some intoxicant drink to Faheem-ul-Karim, Wajid Mughal and Mst. Quratul Ain alias Ainee committed their murder by causing fire arm injuries at Flat No. 04,  situated on 2nd floor of the building constructed on Plot No. 7/C, 14th Commercial Street, Phase-II Extension, DHA, Karachi and also took away their belongings including mobile phones, purse and other valuables.

 

3.         The learned counsel for the applicant/accused has submitted that the accused is in jail since date of his arrest i.e. 11.09.2011 without any fault and there is no likelihood that the trial of accused will be concluded in near future as the prosecution is not cooperating with the learned trial Court; hence, the accused is entitled for the bail as a right under third proviso to sub-section (1) of Section 497 Cr. P.C., as the conditions laid down by this Court in the case of Muhammad Riaz and another vs. The State (2016 P.Cr.L.J. 1206) for the refusal of bail to accused on statutory ground are not applicable in the case of accused.   

 

4.         On the other hand, the complainant has vehemently opposed this application on the ground that the accused is involved in a heinous offence in which three innocent persons have been murdered and his four bail have already been dismissed by the trial Court as well as by this Court on merit; that the prosecution has already short listed the witnesses and there remain only two P.Ws., who are I.Os. of the case, to be examined and they could not be examined due to delay tactics adopted by the co-accused, as such, the delay in conclusion of trail cannot be attributed to prosecution, even otherwise the trial is at the verge of conclusion; therefore, the accused is not entitled to bail on the ground of statuary delay.

 

5.         Learned DPG, while adopting the arguments of complainant has also opposed this application on the ground that the delay in trial of accused has not been occasioned by any act or omission of prosecution and the manner in which three innocent persons were killed brings the case of accused within the exception of third proviso to sub-section (1) of Section 497 Cr. P.C. 

 

6.         I have given due consideration to the arguments advanced by the learned counsel for the accused, learned A.P.G. appearing for the State and the complainant appearing in person and have gone through the record of the case with their assistance.   

 

7.         It appears from the perusal of case diaries that delay in conclusion of trial has occasioned because either accused persons were not produced by jail authority or for want of counsel for the accused persons or the Presiding Officer was on leave or he was on election duty. Delay was also occurred due to adjudication of bail applications of accused and filing of transfer application by them so also application under section 540 Cr. P. C. Delay cannot only be attributed to prosecution side but accused persons are also liable for the same and if the delay on the part of the accused persons is omitted from the total period of trial, then the accused is not entitled for bail on the ground of statutory delay. The accused is facing charge of murdering three persons after administering them intoxicant drink, the act itself shows how dangerous accused (persons) are. The trial is at the verge of conclusion; hence, the facts of the case cited by the learned counsel for the accused are distinguishable from the facts of the case in hand.

 

8.         For the foregoing facts and reasons, I do not find any merit in this application for the grant of bail to accused under third proviso of sub-section (1) of Section 497 Cr. P.C., which is dismissed accordingly.   

 

JUDGE

Athar Zai