ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Criminal Bail Application No. 1370 of 2016

 

Applicant:                              Muhammad Shahzad s/o. Abdul Aleem, 

                                                 through Mr. Hashmat Khalid, advocate.

 

Respondent:                         The State, through Ms. Seema Zaidi, APG.

 

Complainant:                       Zafar Khan through

                                                Mr. Asadullah Burdi, advocate.

 

Date of hearing:                   21.02.2017

Date of order:                       21.02.2017

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O R D E R

 

Zafar Ahmed Rajput, J:-          Through instant Criminal Bail Application,  applicant /accused Muhammad Shahzad son of Abdul Aleem seeks post arrest bail on the ground of statutory delay in Crime No.458 of 2014, registered at P.S. K.I.A., K.E., under section 302 /34 P.P.C. On merit as well as on statutory ground, his earlier bail applications were dismissed by the learned 2nd Additional Sessions Judge, Karachi-East  in Sessions Case No. 2506 of 2014, vide orders dated 19.01.2016 and 09.09.2016, respectively.

 

2.         As per prosecution case, deceased Adil Fida son of Fida Hussain, aged about 26/ 27 years was murdered on 17.06.2014 by some unknown persons in vehicle bearing No. APJ-306 by causing fire arm injuries.

 

3.         Heard the learned counsel for the applicant, complainant and learned APG and perused the material available on record.

 

4.         Learned counsel for the applicant has mainly contended that the accused was arrested on 12.08.2014 and since then he is behind the bars and the trial has yet not been concluded and the delay in trial cannot be attributed to the accused, hence he is entitled for the bail as a right under third proviso of subsection (1) of section 497 Cr. P.C.

5.         On the other hand, learned counsel for the complainant as well as learned APG for the State have opposed the grant of bail to accused on the ground that the accused is involved in pre-planed murder of deceased Adil Fida. They have further submitted that the complainant as well as his witnesses are attending the Court regularly but the delay in trial is due to non-production of case property i.e. the car by the Investigating Officer.

 

 

6.         It appears from the perusal of material placed before this Court that the accused was arrested on 12.08.2014, thereafter, challan was submitted by the police on 26.08.2014. Copies of case papers were supplied to accused on 19.12.2014 while the charge was framed against him by the learned trial Court on 10.03.2015, thereafter, on 14.06.2016 complainant PW Zafar Khan was examined by the trial Court. The trial Court has dismissed the bail application of accused filed on statutory ground by observing that on 22.04.2015, prosecution produced its witnesses, namely, Zafar Khan and Yasir Fida but the learned counsel for the accused was not present  to proceed with the matter, therefore, the case was adjourned. However, the said observation of learned trial Court is absolutely based on misreading of the record, as the certified try copy of the case diaries, produced by the counsel for the applicant, shows that on 22.04.2015 defence counsel was also present.

 

7.         Section 497, Cr. P.C., as already observed by this Court in the case of MUHAMMAD RIAZ and other v. THE STATE (2016 P. Cr. L.J. 1206), gives the accused an independent right for grant of bail on the ground of statutory delay in conclusion of trial subject to certain conditions i.e. (i) that the delay in conclusion of trial had 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 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 a hardened, desperate or dangerous criminal; and (iv) that the accused is involved in an act of terrorism punishable with death or imprisonment for life. If these conditions are not applicable to the case of an accused, he is entitled to the bail as a matter of right and since such right is not left to the discretion of the Court, it cannot be denied under the discretionary power of the Court. Further the right of an accused to an expeditious and fair trial has been enshrined in the Constitution. The object of criminal law is to make accused face trial and not to punish him as under trial prisoner. The intention of law is that a criminal case must be disposed of without unnecessary delay. It will not be difficult to comprehend that inordinate delay in imparting justice is likely to cause erosion of public confidence in the judicial system on one hand, and on the other hand, it  is bound to create a sense of helplessness and despair and feelings of frustration and anguish apart from adding to their woes and miseries. The accused cannot be deprived of the liberty without due process of law; if any delay occurs in trial due to the act of the court or prosecution, then the liberty of accused cannot be curtailed for the fault on the part of the court and prosecution.

 

8.         In the instant case, it an admitted position that the accused are behind the bar for last about 28 months. The delay in conclusion of trial is not 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.

 

9.         Accordingly, I allow this application. The applicant accused is admitted to bail subject to his furnishing solvent surety in the sum of Rs.3,00,000/- (Rupees Three Lacs 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

 

 

HANIF