Criminal Bail Applications No.1585 of 2013
Present
Mr. Justice Aqeel Ahmed Abbasi
Date of hearing : 25.03.2014
Date of order : 25.03.2014
Applicant : Muhammad Qaiser through
Mr. Mumtaz Ali Khan Deshmukh
Advocate
Versus
Respondent : The State through
Mr. Zahoor Shah, APG.
O R D E R
Aqeel Ahmed Abbasi, J. Being aggrieved and dis-satisfied with the order dated 06.08.2013 passed by the III Additional Sessions Judge, Karachi South, in Sessions Case No.96/2012 emanating from Crime No.68/2011 under Section 365/34 PPC registered at P.S. Kalri, Karachi, whereby the bail application of the applicant was dismissed. The applicant has approached this Court under Section 497 Cr.P.C. for seeking his release on bail subject to furnishing solvent surety.
2. Learned counsel for the applicant argued that though the applicant has a prima-facie case on merits as well, however, the applicant would also press the ground of statutory delay for grant of bail to the applicant, as according to learned counsel, the applicant is behind the bar since his arrest i.e. 13.01.2012. It has been further contended by the counsel for the applicant that the applicant had filed Crl. Bail Application No.957/2012 before this Court, which was disposed of as not pressed, however, with the direction to the trial Court to dispose of the matter within a period of two months. Per learned counsel, such direction of this Hon’ble Court have not been followed by the trial Court as neither the matter has been disposed of within the given period nor any material progress has been made by the prosecution in the instant case. Along with instant bail application, learned counsel for the applicant has also placed on record the case diary of the trial Court to show that except one date of hearing the applicant has never sought any adjournment, hence the delay in this regard cannot be attributed to the applicant. Learned counsel has also readout the proviso 7(b) of Section 497 (1)(a) Cr.P.C. and submits that ingredient of the aforesaid provision of law are attracted in the instant case and the applicant is entitled to be released on bail on the ground of statutory delay for the reason that the applicant has been detained for a continues period exceeding two years, whose trial has not been completed, whereas, delay is not attributed to the applicant and the applicant is not a hardened desperate or danger criminal nor he is an accused of an act of terrorism punishment for death or imprisonment for life. It has been prayed that the applicant is entitled to be released on bail on the ground of statutory delay alone subject to furnishing solvent surety. In support of his contention, learned counsel has placed reliance on the following judgments:
1. Muhammad Yaqub v. Munawar Sher 1999 SCMR 1323
2. Bahadar and 5 others v. The State1997 SCMR 1183
3. Shabeer v. The State 2012 SCMR 354
4. Ghulam Qadir alias Azeem and another v. The State 2010 MLD 1948
5. Insaaf and 2 others v. The State 2012 YLR 1588
3. Conversely, learned APG has opposed the grant of bail on merits, whereas, he could not controvert the contentions of the learned counsel for the applicant regarding release of the applicant on bail on the ground of statutory delay. Learned APG has referred to few dates of the case diary of the trial Court including 06.08.2013, when the counsel for the applicant was absent and 04.10.2013 when on the request of the counsel for applicant the matter was adjourned and submitted that the delay cannot be fully attributed to the prosecution in the instant case as the counsel for the applicant has also sought adjournment, however, when the attention of the learned APG was drawn to the entire case diary of the trial Court since arrest of the applicant/accused on 13.01.2012 upto date, the learned APG has candidly stated that except one or two occasions the delay cannot be attributed to the applicant or his counsel.
4. I have heard the learned counsel for the applicant as well as learned A.P.G and perused the record as well as case diary of the trial Court filed along with instant bail application. Since the counsel for the applicant has mainly made his submission for grant of bail to the applicant on the ground of statutory delay in terms of Section 497 (1) proviso 7 clause (b), it will be appropriate to examine the application of the ground of statutory delay to the facts of the present case. Prima-facie from perusal of the case diary, it has been noted that except on one date of hearing i.e. 04.10.2013 (Friday) counsel for the applicant has not sought any adjournment, whereas, the applicant is regularly being produced in Jail custody on each and every date. The applicant/accused is behind the bar from the date of his arrest i.e. 13.01.2012, whereas, charge has been framed on 20.10.2012 and since then no useful progress has been made by the prosecution in the instant case. 33 case diaries produced by the learned counsel for the applicant starting from 20.10.2012 upto 13.02.2014 during which the matter was fixed in Court on about 33 dates, which reflects that the applicant is being produced on each and every date in Jail custody and the counsel for the applicant, complainant, DDP have also shown appearance as well as the prosecution witnesses but the prosecution has failed to examine the material witnesses inspite of lapse of more than 2-1/2 years and the unnecessary delay is being caused in the trial of the case, which cannot be attributed to the applicant. Since the statute has provided a statutory ground to an accused to seek bail on the ground of delay, therefore, the applicant is entitled to such relief granted by the statute if the ingredients of the relevant provision of Section 497 (1) Cr.P.C. and proviso 7 (B) are attracted in the instant case.
5. In the case of Shabeer v. The State 2012 SCMR 354, wherein Hon’ble Supreme Court while examining the similar amendments introduced through Act VIII of 2011 in Section 497 Cr.P.C, has held that “having considered the submission made before us by the parties’ counsel, we have also perused the newly added provision to section 497 Cr.P.C, vide Act VIII of 2011, which entitles an accused for enlargement on bail, after having remained in custody for a continuous period exceeding two years unless in the opinion of the Court a hardened, desperate or dangerous criminal or was accused for an act of terrorism punishable with death or Imprisonment for life, which is not the position in the instant case.”
6. Similarly, in three other reported cases relied by the learned counsel for the applicant i.e. Ghulam Qadir alias Azeem and another v. The State 2010 MLD 1948, Ghulam Mustafa and 2 others PLD 2011 Karachi 394 and Tariq Shah v. The State 2012 P.Cr.L.J 634, the three different judges of this Court including the undersigned have granted bail to the applicants on the statutory ground of delay without having recourse to examine the merits of the case.
7. From perusal of hereinabove material available on record, I am of the view that the applicant has made out a ground for grant of bail on the ground of statutory delay, which was granted to the applicant subject to his 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 vide short order dated 05.03.2014 and these are the reasons for such short order.
8. Needless to observe that the observations made herein are tentative in nature and shall not prejudice the merits of the case which may be examined strictly in accordance with law and on the basis of evidence on record.
9. However, it is clarified that if, the applicant misuses the concession of bail in any manner, the learned trial Court shall be at liberty to proceed against the applicant as per law.
J U D G E