ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Criminal Bail Application No. 1808 of 2016
Applicant: Altaf Hussain Chandio s/o. Nawab-ud-din,
through Mr. Muhammad Arshad Tariq, Advocate.
Respondent: The State, through Ms. Rahat Ehsan, DPG.
Complainant: Nasir s/o. Abdul Qadeer (nemo).
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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 Altaf Hussain Chandio s/o. Nawab-ud-din seeks post arrest bail on ground of statutory delay in Crime No. 223 of 2014, registered at P.S. Korangi, Karachi under Section 397/34 P.P.C. On merit as well as on statutory ground his earlier bail applications in Sessions Case No. 2436 of 2014 were dismissed by the learned IVth Additional Sessions Judge, Karachi-East, vide orders dated 28.07.2014 and 05.12.2016, respectively.
2. As per prosecution case, on 30.09.2014 at 0930 hours, the applicant/accused alongwith co-accused committed robbery in the shop of complainant located in his house situated at Zaman Town, Korangi and on resistance from complainant party, they caused fire arm injuries to brother of the complainant, namely, Abdul Yasir, who later on succumbed to injuries, while one of the accused persons was apprehended by the public and was beaten, who fell in Ganda Nala and died.
3. The learned counsel for the applicant/accused has submitted that the accused was arrested on 02.10.2014 and since then he is behind the bars; however, the trial has not yet been concluded and the delay in trial cannot be attributed to the accused; hence, the accused is entitled for the bail as a right under third proviso to sub-section (1) of Section 497 Cr. P.C. In support of his contentions, the learned counsel for the accused has placed his reliance on the cases of Muhammad Afzal Butt alias Aphi vs. The State and others (2015 SCMR 1696) and Shabeer vs. The State (2012 SCMR 354)
4. On the other hand, the learned DPG has vehemently opposed this application on the ground that the accused is involved in a heinous offence of robbery and murder of innocent person, which brings the case of accused within the exception of third proviso to sub-section (1) of Section 497 Cr. P.C.; that present accused was arrested by the police in another case and thereafter his identification parade was conducted before Judicial Magistrate wherein complainant and PW Aamir identified him as one of the accused persons of the alleged incident; that the delay has occasioned in the trial due to the fact that the absconding co-accused have yet not been arrested and NBWs are being issued against them for their arrest.
5. I have considered the arguments advanced by the learned counsel for the accused and learned D.P.G. appearing for the State as well as gone through the record of the case with their assistance.
6. It appears from the perusal of case file that the alleged offence took place on 30.09.2014, while the present accused was arrested by the police on 02.10.2014 in another case/crime bearing No. 226/2014 registered at PS Korangi under Section 23(i)A of Sindh Arms Act, 2013 and he was identified by the complainant and one P.W. in identification parade conducted before a Judicial Magistrate after ten (10) days of his arrest. Challan was submitted by the police against present accused and other absconding accused on 28.10.2014 and copies of cases papers were supplied to present accused by the trial Court on 12.06.2015; however, since then there is no further progress in the trial of the accused.
7. Third proviso of sub-section (1) of Section 497 Cr. P.C. provides to accused an independent right for grant of bail on the ground of statutory delay in conclusion of trial provided (i) that the delay in conclusion of trial had not occasioned on account of an act or omission on the part of the accused or any person acting on his behalf; (ii) that the accused is not a previously convicted offender for an offence punishable with death or imprisonment for life; (iii) that in the opinion of the Court, the accused is not a hardened, desperate or dangerous criminal; and (iv) that the accused is not involved in an act of terrorism punishable with death or imprisonment for life. Since such right is not left to the discretion of the Court, it cannot be denied under the discretionary power of the Court.
8. In the instant case, it an admitted position that the accused is behind the bars for last more than 28 months. Challan was submitted against him by the prosecution on 28.10.2014. Charge was to be framed within a reasonable period by the trial Court, but it has not yet been framed, as the NBWs to procure the arrest of absconding co-accused are being issued by the trial court. The delay in conclusion of trial cannot be attributed to accused and not a single ground, as discussed above, is available with prosecution to decline the bail to accused on the statutory ground. As regard to the contention of learned DPG, suffice to say it that the accused cannot be deprived from his right to bail on statutory ground merely for the reason that co-accused have not yet been arrested. If that was the case, the trial of the present accused could have been separated, but same has not been done and when the trial is continuing jointly and some of the co-accused are still absconders; the accused cannot be kept behind bars for an indefinite period. Reliance in this regard is placed on the case of Muhammad Afzal Butt (supra).
9. Accordingly, I allow this application. The applicant/ accused is admitted to bail subject to his furnishing solvent surety in the sum of Rs. 300,000/- (Rupees Three Hindered Thousand only) and P.R. bond in the like amount to the satisfaction of the trial Court.
10. Needless to mention here that if applicant in any manner tries to misuse the concession of bail, it would be open for the trial Court to cancel his bail after issuing him the requisite notice.
JUDGE
Athar Zai