IN THE HIGH COURT OF SINDH AT KARACHI

Criminal Bail Application No. 1402 of 2016

Abid Ali.…………..………………………………...…………………..Applicant

Versus

The State…………………………….……………..……………….Respondent

Date of Order : 13.02.2017

Mr. Javaid Haider Kazmi, advocate for the Applicant.

Mr. M. Arif Khan, advocate for the complainant.

Mr. Abdullah Rajput, Addl. P.G for State.

O R D E R

FAHIM AHMED SIDDIQUI, J: This order will dispose of the instant bail application moved on behalf of the applicant above named, who is facing trial in a case initiated under FIR No. 149/2009 lodged at PS Shah Faisal Colony, Karachi.

2. The allegations against the applicant/accused are that he, on account of some money dispute with the complainant, fired at him with a pistol due to which he received injuries and subsequently expired during treatment in a hospital.

3. The learned counsel for the applicant has made his submissions at length. The gist of his arguments is that previously the bail application of the applicant was declined on merits and the present application is moved solely on the ground of statutory delay. According to him, the applicant/accused is behind the bar for a considerable period and he had already passed the statutory period of detention in jail. He submitted that the court remained vacant for more than two years as such applicable/accused is not responsible for the delay. He pointed out that as per case diary dated 26-07-2016, the matter was adjourned because of non-availability of case property. According to him, case property is missing and without case property, there is no chance of conviction. The applicant/accused is a polio patient and needs medical care, therefore, on the medical ground, he is also entitled to bail. He took reliance from PLD 1974 SC 224, 1985 SCMR 1509, PLD 1995 Supreme Court 49, 2002 SCMR 184, 2012 SCMR 354, 2013 SCMR 49, 2015 SCJ 518, 2005 PCrLJ Karachi 147 and 2006 MLD Karachi 178.

4. As against the above, the learned APG for the state submitted that the trial is on the verge of completion and trail court has already examined five witnesses. According to him, there remained only two important witnesses to be examined and after that, the prosecution would likely to close their side. He submitted that at this stage when the trial is in full swing and is about to end, it would not be better to release the applicant/accused on bail as it might cause further delay.

5. After hearing the arguments advanced at the bar, I have gone through the material placed before me. In the instant case, the trial was delayed and allegedly reason for the delay is that the court remained vacant for more than two years. It is worth noting that in such a situation, the applicant/accused had to move an application for transfer of the case, but he did not do so. It is very likely that he avoided doing so with the intention to create a ground for statutory delay in his favour. It is also worth noting that now the Presiding Officer has been posted in the trial court and trial against the accused has not only started, but the same is close to conclusion. The apprehension of the learned APG is also rational that granting bail might cause a further delay because of the chances of absconding away of accused. The learned APG pointed out that the trial court would conclude the case within a short span of time as there remains only two witnesses to be examined.

6. There is no cavil about the proposition that unreasonable delay in trial is a valid ground for seeking bail, but it is also an indefeasible fact that the court cannot be devoid from its sacred duty of careful examination of the entire available material before exercising its discretion for or against an applicant/accused. At the time of bail, it is also the duty of the court to examine that if there are 'reasonable grounds’ for believing that the applicant/accused is guilty or not. It is notable that the words "shall not" are used in section 497 Cr.P.C., which makes it obligatory for a Court to deny bail in those cases, where ‘reasonable grounds’ exist for believing that the applicant/accused is guilty of the offence. This ‘reasonable ground’ is a controlling phrase of Section 497 of Cr.P.C. and being condition precedent cannot be ignored. The use of word “shall” in the third proviso to release the accused person on the ground of being in detention for a continuous period of two years cannot be read in isolation. It cannot take away the prime duty of the Court to examine the other connected circumstances of the case. As the words “shall not” have placed a restriction on Court to release an applicant/accused on bail therefore in such a situation the rule of 'strict construction' or 'strict interpretation' needs to apply. As such, the word “shall” in the third proviso is not creating an obligation on the Court to release an applicant/accused on bail after passing two years in a case of capital punishment. The reason is that a proviso of a statute is inseparable from the main statute, which has made it mandatory for a Court to check the existence of ‘reasonable ground’ for believing or not believing in the guilt of applicant before releasing him on bail. The Court is required to consider the circumstances of the case while forming an opinion regarding fourth proviso. For this, I would like to refer the case of Manzoor Ahmed v. The State (1999 SCMR 131), wherein the Hon'ble Supreme Court has observed as under:

"We find that the order passed by the learned Judge in Chamber is not open to exception. The learned Judge in the High Court obviously could not be oblivious of the high incidence of cases of car-snatching in the city of Karachi. Therefore, in our opinion, he rightly invoked the fourth proviso to section 497(1) while rejecting the petitioner's bail application".

In the instant case, the applicant/accused is involved with a specific role assigned to him under a promptly lodged FIR. The contents of FIR based on a statement of deceased recorded under Section 154 Cr.P.C. in the hospital after receiving fatal injuries. Meaning thereby that the said statement of deceased is not merely a FIR, but it has attained the worth of a dying declaration. It is also important to mention here that the trial is in its full swing and the same is likely to conclude soon.

7. In such a situation, I am of the view that no reason is available to extend the discretionary relief to the applicant/accused. However, the trial court is directed to enhance the pace of trial and conclude the same within a period of three months. The citations referred by the learned counsel for the applicant/accused do not proceed to the facts and circumstances of the case in hand, as such not helpful for him.

8. The observation made in the preceding paragraphs are tentative in nature, and the same should have no bearing on the trial of an accused, which should proceed purely on merit.

9. These are the reasons for my short order passed on 13.02.2017 whereby instant bail application was dismissed.

J U D G E