1. ' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.--- This bail application has been submitted on sole ground of hardship, on account of delay in disposal of case.
2. ' The relevant facts are that the applicant Farukh Qadri was arrested on 7-10-2000 and since then he is in jail. He is facing trial for the commission of offence under section 302, P.P.C.
3. ' Mr. Abdul Waheed Katpar learned counsel for the applicant has submitted that on the sole ground of delay in the disposal of the case, the applicant Farrukh Qadri is entitled to be released on bail.
4. ' I have heard learned Advocates for the parties and have gone through the order dated 25-3- 2006, whereby the learned trial Court rejected bail application on behalf of applicant on the same ground. The learned trial Court has observed that delay in the conclusion is attributed to applicant and hence he is not entitled to be released on bail on the ground of hardship. The learned trial Court has further observed that the perusal of record shows that witnesses were present on several dates but their statements could not be recorded as the learned counsel for the applicant remained absent on those dates. The earlier bail application was rejected by the trial Court on the similar ground on 15-7-2004. Mr. Ali Nawaz Ghanghro has pointed out that similar application was rejected by a learned Single Judge of this Court on 17-8-2005.
5. ' Mr. Abdul Waheed Katpar has contended that the observation made by the trial Court is not correct as on several dates witnesses were not present and on various dates either applicant or any other accused was not produced from custody or Advocates for other co-accused were absent, therefore, delay cannot be attributed to the applicant Farrukh Qadri or his Advocate.
6. ' On the other hand Mr. Ali Nawaz Ghanghro learned counsel for the complainant and learned State Counsel have opposed the grant of bail contending that the applicant is responsible for the delay and therefore, is not entitled to be released on bail.
7. ' Certified copies of the order sheets of the trial Court have been produced and I have examined the same with the assistance of learned counsel for the parties. As the last bail application was dismissed by the learned Single Judge of this Court on 17-8-2005, therefore, I have examined order sheets for the years 2005 and 2006 only. A perusal of order sheets for the year 2006, shows that witnesses were not in attendance. However, perusal of order sheets for the years 2005 shows that witnesses were present on 7-1-2005, 25-1-2005, 16-2-2005, 7-3-2005, 19-3-2005, 9-4-2005, 25-4- 2005, 11-5-2005, 4-6-2005, 29-6-2005 and thereafter no witness was present on 23-7-2005, 30-8- 2005, 15-9-2005, 29-9-2005, 13-10-2005, 29-10-2005, 19-11-2005, 3-12-2005 and 17-12-2005.
8. ' Mr. Ali Nawaz Ghanghro stated that the complainant undertakes to appear before the trial Court on each and every date of hearing and produce the private witnesses before the learned trial Court. He has submitted that the D.P.O. (Operation) Larkana may be directed to produce the official witnesses before the trial Court and the trial Court may be directed to proceed with the case on each and every date of hearing even if some accused persons are not produced before the trial Courts, keeping in view the provisions contained in section 540-A, Cr.P.C. Wherein it is provided that at any stage of an enquiry or trial under this Code, where two or more accused are before the Court, if the Judge or Magistrate is satisfied for the reasons to be recorded that anyone or more of such accused is or incapable of remaining before the Court, he may, if such accused is represented by the pleader, dispense with his attendance and proceed with such enquiry or trial in his absence, and may, at subsequent stage of the proceedings, direct the personal attendance of such accused. It is further provided in subsection (2) of the above section that if the accused in any such case is not represented by pleader, or if Judge, or Magistrate considers his personal attendance necessary, he may if he thinks fit, and for reasons to be recorded by him either adjourn such enquiry or trial or order that the case of such accused be taken up or tried separately.
9. ' Mr. Abdul Waheed Katpar in support of his contention that applicant is entitled to be released on bail placed reliance on the judgment of Honourable Supreme Court in the case of Fida Hussain v.
10. The State PLD 2002 SC 46.
11. ' I have carefully considered the arguments raised by the learned counsel for the parties and material placed on record.
12. ' At the very outset I would like to observe that the ratio in the judgment of Honourable Supreme Court, in the case of Fida Hussain v. The State, is not attracted to the present case for the reason that the bail was granted by the Honourable Supreme Court keeping in view the third proviso to section 497, Cr.P.C. Which was on the statute book during relevant period and accused had completed two years in detention. The proviso has been omitted w:e.f. 10th October, 2001 and the applicant had not completed the period of two years detention by that time.
13. ' The narration of the facts, depicting the picture of attendance of witnesses in the year 2005 shows that they were present on 10 dates and it is not difficult to visualize that these were not the only dates when they appeared and case did not proceed and, therefore, they lost patience and discontinued to appear before the Court. The prosecution and defence are not supposed to test patience of the witnesses and when they lose it then start claiming concession. The benefit can be sought only if the witnesses fail to appear in order to cause the delay and extend the incarceration of the accused person in jail.
14. ' When the 3rd and 4th proviso to section 497, Cr.P.C. Were on the Statute Book, this point, was considered by several superior Courts. A Pre-dominant view was that if the witnesses appeared on several dates and were not examined, their subsequent absence, shall not justify the release of accused on bail as a matter of right and same principle is still applicable when the bail is not be granted as a matter of right but can be considered on the ground of inordinate delay in disposal of the case.
15. ' I would also like to observe that generally the trial Courts appear to be totally oblivious of the provisions contained in section 540-A, Cr.P.C. And, therefore, are not resorting to this provision, in any case, which was inserted to meet the eventualities as in this case. It appears that the learned Advocate for the complainant and prosecutor, as well as the learned defence counsel failed to assist the Court and never made a request that if one or two accused were not produced on any particular date, while other accused persons were present before the Court and the witnesses were in attendance, and the accused who were not produced before the Court were represented through the Advocate the case could be proceeded with. I am of the opinion that the trial Court, prosecutor, Advocate for the complainant and the 'defence Advocates have equally contributed in causing delay in disposal of the case and perpetrating the agony on the accused as well as prosecution witnesses. This state of affairs cannot be termed as satisfactory by any stretch of imagination. The system of law can work properly if all the stake-holders perform their duty properly and with due diligence. Be that as it may, the entire responsibility for delay cannot be saddled on the shoulder of prosecution witnesses; therefore, I am of the opinion that the applicant is not entitled to be released on bail. The bail application stands dismissed accordingly.
16. ' Before parting with this order I would like to direct the trial Court to proceed with the case and record statement of witnesses keeping in view the convenience of the prosecutor and defence Advocates. Once date is fixed according to the convenience of learned Advocate concerned, then the trial Court must proceed with the case even if one or two accused persons are not in attendance, keeping in view the provisions in section 540-A, Cr.P.C. In view. If the case does not proceed on account of non-attendance or production of the accused and the absence of counsel also, then the delay shall be attributed to such accused. I further direct the D.P.O. (Operation)
17. Larkana to ensure the presence of all the prosecution witnesses before the trial Court on the next date of hearing. The trial Court shall issue summons to all the prosecution witnesses to be served through D.P.O. (Operation) Larkana.
18. ' The trial Court shall not issue warrants of arrest of the witnesses for the time being, to procure their attendance. If the witnesses attend the proceedings in trial Court on several dates and thereafter remain absent on one or two dates then it is not desirable to issue their warrants. It is advisable to repeat the summons.
19. ' The D.P.O. (Operation) Larkana shall submit his progress report to M.I.T. High Court at Principal Seat, Karachi for perusal of the learned Judge incharge, District Larkana. Likewise the trial Court shall also submit progress report after every fortnight to the M.I.T. Principal Seat at Karachi. The trial Court shall try to conclude the case within the period of two months and if the case is not concluded he shall record the reasons for not doing so and submit the same to M.I.T. At Principal Seat for further necessary orders.
20. ' Copies of this order be sent to the learned trial Court as well as D.P.O. (Operation), Larkana for compliance.