ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl. Bail Appln.    No.S-565              of  2011.

DATE

OF HEARING

ORDER WITH SIGNATURE OF HON’BLE JUDGE

                                   

 

1. For orders on office objection as Flag ‘A’.

2. For Hearing.

24.2.2012.

 

                        Mr. Sarfraz Khan Jatoi, advocate for applicant.

 

                        Mr. Ameer Ahmed Narejo, State Counsel.

 

                                                -.-.-.-.-.-.-.-.-

 

                        The applicant has applied for bail in Crime No.152/2009 lodged under section 302, 148, 149, 114, 337-H-2, PPC at Police Station Khanpur. The bail application was moved in the trial Court but vide order dated 3rd October 2011, it was dismissed and so far as the ground of statutory delay is concerned, the learned trial Court has observed that the delay cannot be solely attributed to the complainant party as on 09.6.2011 and 16.62011, the  complainant and Prosecution Witness were present but the defence counsel submitted adjournment applications. This was the only observation made by the learned trial Court regarding the plea of statutory delay and  on the basis of these two adjournments, he  dismissed the bail application. The Learned counsel for the applicant argued that the applicant is in custody since 10th August 2009 and there is no progress in the trial. He further argued that it is evident from the entire case diaries that the applicant cannot be held responsible for any delay as he along with another accused always produced in the Court in custody and some times the matter was adjourned with  the direction to issue process to prosecution witnesses and some times the complainant moved adjournment application.  Therefore, he submits that in view of the amendment made under section 497, Cr.P.C, the applicant is entitled to be enlarged on bail as he is not responsible for the delay and the trial has not been concluded within the period of two years and in fact two and half years have been passed in this case but the trial Court has failed to conclude the trial.

                        Though the learned counsel did not file the case diaries along with bail application but he produced certified copies in Court today from 25.8.2009 to 06.10.2011. The challan was submitted on 25.8.2009 and the learned Sessions Judge received Record & Proceedings from the leaned Judicial Magistrate on 27.8.2009. After at least eight formal dates, the charge was framed on 16.10.2010 and after at least forty one dates, only one Prosecution Witness Tapedar was examined on 09.6.2011 and the matter was adjourned to 16.6.2011 and thereafter the matter was adjourned at least for eighteen more dates without any further progress.

                        No doubt for ascertaining the cause of delay,  the mathematical calculation is not required even then in order to reach just and proper conclusion, I have examined each and every date and reached to the conclusion that almost on every date the applicant was produced in custody but the matter was adjourned for different reasons including non appearance of prosecution witnesses, adjournment applications on behalf of complainant, Court is lying vacant etc. However two or three  dates were requested by the applicant also which is quite occasional for which  entire responsibility cannot be shifted upon the applicant for the delay. If the Prosecution Witnesses are not appearing, the learned trial Court may take all coercive methods and ensure their presence in accordance with the provisions of Criminal Procedure Code and the guidelines provided under the National Judicial Policy, but in this case except one Tapedar not a single witness has been examined and no reasons are mentioned in the trial Court order to show the cause of delay except two adjournments applications.  The applicant is behind the bar since 10.8.2009 and  on the ground of statutory delay the learned State Counsel has also no objection, if the applicant is granted bail.  In view of the above situation, this bail application is allowed and the applicant is granted bail subject to furnishing solvent surety in the sum of Rs.200,000/- and P.R bond in the like amount to the satisfaction of the trial Court.

                        The learned trial Court is directed to expedite the trial and conclude the same within three months in view of the directions provided under National Judicial Policy.

                        Bail application is disposed of.

 

 

                                                                                                                        Judge