Rahmat Hussain Jafferi, J.--The present bail application has been filed for grant of bail to the applicant on the ground that the order of the Honourable Supreme Court of Pakistan dated 15.7.2005 has not been complied with by the trial Court.
2. Brief facts for the purpose of present application are that the applicant was involved in a case of recovery of 7 kilograms, of narcotics from his possession. There were four accused including the applicant Three accused were arrested, out of them one was granted bail. The remaining two accused including the applicant are in custody. The fourth accused is absconder. The applicant moved bail applications, lastly before this Court but the same was dismissed vide order, dated 23.4.2004. The applicant challenged the said order before the Honourable Supreme Court of Pakistan on merits as well as on the ground of delay in trial. Before the Honourable Supreme Court, the learned Advocate for the applicant after arguing at sufficient length did not press the petition and contended that directions might be given to the trial Court to examine the complainant within two months. Accordingly, the Honourable Supreme Court of Pakistan accepted the suggestion of the learned Advocate for the applicant and passed 'the order, dated 15.7.2005, by which the trial Court was directed to examine the complainant within a period of two months. On 15.9.2005 applicant moved bail application before the trial Court but the same was dismissed vide order dated 23.10.2005, hence he has filed the present application:
3. We have heard the Advocate for the applicant, Special Prosecutor for A.N.F. and perused the record of this case very, carefully. Learned Advocate for the applicant has contended that delay in the trial of the case is shocking, therefore, on that ground the applicant is entitled to the concession of bail and relied upon several decision of Honourable Supreme Court and the High Courts. He has further contended that because the order of the Honourable Supreme Court, dated 15.7.2005 has not been complied with therefore, the applicant is entitled to the concession of bail.
4. Learned Special Prosecutor for A.N.F. has stated that the bail application filed before the Honourable Supreme Court was on the ground of delay but the same was not pressed, therefore, the said ground is not available to the applicant at this stage. However, he has stated that the order of Honourable Supreme Court was received by the trial Court on 8.8.2005, thereafter the Presiding Officer was on leave upto 30.9.2005, subsequently, it was brought to the notice of the trial Court that co-accused Lal Muhammad was shifted to Sanghar, therefore, production orders were issued for his production but the said accused was not brought before the Court, as such a reasonable explanation is available with the prosecution for not complying with the order and now the trial Court has stated in its report dated 5.10.2005 that the case of the applicant would be bifurcated from the case of Lal Muhammad and the order of the Honourable Supreme Court would be complied with within the required period.
5. We have given due consideration to the arguments, gone through the material available on the record and found that the ground of delay was available with the applicant which he had agitated before the Honourable Supreme Court of Pakistan but he did not press the said ground and had confined himself that the direction might be given to the trial Court for recording the statement of complainant within a period of two months. The said prayer of the applicant was accepted.
Consequently, the direction was given to the trial Court vide order, dated 15.7.2005. The report of the trial Court was called. In his report dated 5.1.2006 the learned trial Judge has explained the position.
The said report reads as under:- "I have the honour to submit the report in compliance of above referred order of Honourable High Court as under:-
(1) That case of accused in custody was bifurcated from absconding accused on 9.9.2004 i,e, much before the order of Honourable Supreme Court dated 26.7.2005, received on 8.8.2005 and put up before the P.O. on 13.8.2005.
(2) That after 13.8.2005, on 16.8,2005 fax was received that custody of co-accused Lal Muhammad was transferred to District Jail Sanghar.
(3) That the P.O. remained on summer vacation and E/Leave from 17.8.2005 to 30.9.2005.
(4) That thereafter P.O. is being issued to Superintendent Jail, Sanghar for co-accused Lal Muhammad; but he is not being produced.
(5) That on every date it was believed that the accused Lal Muhammad would be produced from District Jail Sanghar and the case would be proceeded with but the accused is not produced from District Jail, Sanghar.
(6) That in case co-accused Lal Muhammad is not produced again on the N/date the case of Luqman Raji will hopefully be bifurcated and will be tried separately trial. It is further submitted that this Court is not provided with suitable staff and the P.O. is not getting required help from the staff."
6. From the above report it is clear that the trial Court was taking efforts to comply with the directions of the Honourable Supreme Court. The learned Advocate for the applicant has also confirmed the position that after it was brought, to the notice of the trial Court that Lal, Muhammad was shifted to Sanghar, heetic efforts were made through ordinary made, fax and other modies to procure the attendance of Lal Muhammad, unfortunately, Lal Muhammad was not produced. All these circumstances show that the trial Court was trying to comply with the order of the Honourable Supreme Court but the trial Court was not able to procure the attendance of Lal Muhammad as he was shifted to Songhar. However, the Learned trial Judge has stated that if on the next date of hearing the co-accused Lal Muhammad is not produced before him then he would bifurcate the case and try the case expeditiously. In these circumstances, we are of the considered view that the trial Court was unable to comply with the orders of the Honourable Supreme Court because of above circumstances. Now a correct approach has been made by the trial Court to bifurcate the case of the applicant to decide the same expeditiously. In these circumstances we direct the trial Court to bifurcate the case of the applicant as per his own report and comply with the order of the Honourable Supreme Court within the required period and shall submit compliance report before this Court after expiry of such period.
7. In view of the above circumstances we are of the opinion that the applicant is not entitled to the concession of bail at this stage, hence the application is dismissed.