CRL.BAIL
APPLN.NO. S-435 OF 2011
Date of hearing: 10.09.2012
Decided on: 10.09.2012
Applicant
present in person in custody
Mr. Moohan Lal, Assistant
Prosecutor General for the State.
…………….............
O R D E R
SALAHUDDIN
PANHWAR---J., Applicant Aijaz alias Fouji seeks post
arrest bail in crime No.47/2007 PS, Mehrabpur, under Section 302, 506/2, 34
PPC.
2. Relevant facts of the
case are that complainant Mohammad Ameen lodged FIR at PS, Mehrabpur, stating
therein, that complainant along with Mour son of his sister, Mour’s wife Mst. Shabiran,
Ghulam Hyder and Shah Nawaz were returning back from a marriage ceremony to
their village when they reached at Trimooh at about 2 pm, four persons on
motorcycles waylaid them. They identified one person as Aijaz alias Fouji, (present
applicant), armed with dagger and Naik Mohammad alias Naiko armed with dagger
and two unidentified persons armed with pistols. Aijaz alias Fouji caused
dagger blow on the chest of Moor, and Naik Mohammad caused dagger blow on right
hand of Moor resultantly, injured Moor succumbed to injuries. FIR was lodged
and case was challaned before the trial Court.
3. Record further reveals
that during trial applicant filed bail application which was dismissed,
therefore, he approached this Court in person on merits as well as on statutory
delay ground. Report was called by this Court regarding delay in conclusion of
trial by order dated 22.8.2011. Pursuant to that order report was submitted by
Additional Sessions Judge, Kandiaro which reflects that after framing of charge
the process was issued against the prosecution witnesses, same was not served,
therefore, BWs were issued, same were also not executed, therefore, NBWs were
issued. Subsequently, complainant approached to the trial Court and requested
for time with undertaking that he will produce the PWs. It is further revealed
that another report was called by this Court by order dated 7.8.2011, same
disclosed that applicant Aijaz alias Fouji had already engaged an advocate Mr.
Khamiso Khan Rind in subject matter, thereafter, he changed his counsel and
engaged Mr. Mahmood Ahmed Ujjan advocate. Again he changed his counsel and
engaged Mr. Zulfiqar Panhwar advocate. Subsequently, applicant moved
application that he intends to engage another counsel. In report it is also
mentioned that since this is a case of capital punishment and cannot be
proceeded without counsel, therefore, last chance was given to the applicant to
engage an advocate and proceed with the matter.
4. Applicant present in
person has contended that he is a poor person and is behind the bars since 2007
and still case is not concluded, thus, he is entitled for bail.
5. Conversely, learned
Assistant Prosecutor General has argued that specific role is assigned to the
applicant; it is a day time incident; delay is not on the part of the
prosecution; same is on the part of the applicant, therefore, he is not
entitled for bail.
6. I have heard the
applicant in person, learned Assistant Prosecutor General for State and have
perused the police papers and available record.
7. After careful
examination of the factual side of the case, this is a day time incident;
offence was committed at 2 p.m, ocular evidence in shape of eye-witnesses is
available against the applicant; specific role is assigned in ocular version
which is that applicant has caused dagger blow to the deceased on his chest and
such ocular version is in affirmative with medical report. According to medical
report injury caused on chest is fatal injury, thereby, on merits applicant has
no case, reasonable grounds exist against the applicant to believe that prima
facie applicant has committed offence falling within prohibitory clause of
section 497 CRPC.
8. Regarding bail on
statutory ground, it is mandatory requirement of law under proviso 3 of section
497 CRPC, to examine the reasons of delay in conclusion of trial if same is not
concluded within stipulated period, and it is also to be verified that whether applicant/accused
is already convicted offender for an offence punishable with death or
imprisonment for life and whether accused is desperate or dangerous criminal or
is accused of an act of terrorism, pursuant to that, two reports were called by
this Court. In first report submitted by the Additional Sessions Judge,
Kandiaro dated 30.8.2011, disclose that PWs were not in attendance but
subsequently they appeared and requested for time. Second report available on
record dated 14.9.2011, reflects that applicant has engaged three counsels on
various dates; first he engaged counsel on 6.11.2007, subsequently, he changed
his counsel on 9.3.2010, then he again changed his counsel on 6.1.2011, and
lastly on 7.9.2011, he moved application for engaging another counsel. Though
there is statutory proviso 3 of section 497 Cr.P.C that in the cases of life
imprisonment, if delay is not attributed to the accused side and two years
statutory period has been completed, bail is right of accused but it is
important to note here that conduct of the accused is to be seen if he has
taken the ground of statutory delay, while deciding bail on statutory ground,
such as whether delay is designed by the accused side by adopting various modes
and if the Court reaches on the conclusion from any source that delay is
designed by the accused, in such situation, even on delay ground, bail shall not
be granted. On this view, authoritative proposition of law is settled by larger of honourable Supreme Court in case of Liaqat Hussain versus Federation
of Pakistan at paragraph 45 reported in 1999 PLD SC 504, it is held that:--
“Before concluding the above discussion, it will not be out of context
to point out that third proviso to section 497 of the criminal procedure code
is also substantially contributing towards the delay in the disposal of
criminal cases as it entitles an accused person of an offence not punishable
with death to obtain bail on the expiry of one year from the date of his
arrest, and in case of an offence punishable with death on the expiry of two
years period from the date of his arrest. Some of the accused persons by their
design ensure that the trials of their cases are delayed , so that they may
come out of jails on the expiry of the above statutory periods .In my humble
view , the above provision has been misused and the same needs to be deleted. I
may also observe that even before the incorporation of the above proviso , it
was open to a court to grant bail in a fit case on the ground of inordinate
delay in the trial of a case, but no accused person was entitled to claim bail
as a matter of right on the expiry of certain period”
In
the present case record is manifest that applicant instead of proceeding with
the case has made attempts to get the bail. He has changed his counsel’s on
various occasions without any justification, only to linger on the case,
resultantly has delayed the proceeding of the case in trial court, thus,
suffice to say that applicant by design has caused delay in conclusion of
trial, therefore, has failed to make out the case of bail on statutory ground, thereby,
instant bail application is hereby dismissed.
9. Regarding to the contention of trial
court that, since this is a murder case,
same cannot be proceeded without counsel of the accused, no doubt
legally every case, which provides capital punishment shall be proceeded in
presence of counsel of accused , but on this proposition case cannot be delayed
for indefinite period, in case if accused is pauper accused and unable to
engage counsel , law permits to the court to provide counsel on state expenses,
and conclude the trial however trial must be conducted by providing complete
opportunity of “fair trial” and “due process” as enshrined in article 10 A of Constitution
of Islamic Republic of Pakistan, but any
accused person cannot be allowed to get undue advantage of that proviso, because
simultaneously it is also the
fundamental right of complainant to see the fate of his case on same principle of “fair trial” and “Due process” by
concluding his case within reasonable time, consequently, Trial Court is
competent to provide the counsel to the pauper accused, if accused is unable to
engage counsel on any ground and proceed with the case according to law and
conclude the trial within reasonable time.
10. Keeping in view the
circumstance of the case, trial Court is hereby directed to provide counsel to
the applicant / accused if he is unable to engage counsel, and conclude the
trial of subject matter case within three months and submit compliance report
to this court through Additional Registrar, positively.
J U D G E
N.M