Petitioner Inayat Ali has been booked along with his co-accused vide FIR No, 1123 dated 21.11.2007 by Police Station Badabher, Peshawar for crime under Article 17 (3) Haraabah and under Section 411 PPC. He has been refused bail by the trial Court, hence seeks the same relief from this Court.
Arguments heard. Record perused.
2. The complainant Arshad Khan reported the crime to one Aurangzeb Khan ASI that his taxi Suzuki Car No, M-3069/Peshawar, Model 1991 was hired from "Board Bazar" by three young men for Sheikh Muhammadi and while in transit on Canal Road near Suleman Khel, all the three put pistols on his temporal and snatched the car from him along with Nokia Mobile set, Rs, 1000/- and driving licence.
3. The police have shown extraordinary smartness in this case by claiming that they chased the accused and found the car inside a water canal near Suleman Khel and two of the accused including the petitioner was arrested there from in injured condition. However, except some currency notes, neither the pistols nor any other articles belonging to the complainant was recovered from the accused. The recovery of the currency notes is also a begging question.
4. The complainant Arshad Khan was with the police but it is astonishing that they were produced before the medical officer of LRH Peshawar on 22.11.2007, the following day for treatment and examination which fact is evident from the two M.L.Cs.
5. The entire case file was perused which revealed that the petitioner and co-accused have no previous history of car snatching or committing robberies. The circumstances in which they were arrested after a brief chase, Whether any occasion was left for them to dispose of the pistols used in the snatching of the car and what happened to the driving license and mobile phone set of the complainant. All these questions are seeking explanation from the prosecution but it has none to give.
6. The petitioner along with co-accused remained in police custody. They were extensively interrogated and were subjected to police tactics but they did not confess and despite such long stay with the police, they were never put to identification parade which was a must.
7. The above facts and circumstances apart, learned counsel for the State conceded that "Challan" has been submitted to the trial Court on 17.12.2007. However, he could not rebut the contention of the learned counsel for the petitioner that till date, not a single witness for the prosecution has been examined and no good reason is shown for such gross default albeit the police witnesses and the complainant all reside at a distance of few kilometers from the premises where the trial is being held.
8. The complainant has successfully made attempts in thwarting the disposal of the petition and progress of trial in the case because on the previous date, his counsel was present but today he appeared and stated that his counsel is sick. Neither any proper application has been made for adjournment on that ground as required under the High Court Rules which is essentially to be made (24) hours before the date of hearing nor the nature of ailment was disclosed preventing the learned counsel to appear and argue the case.
9. This is not the case of first impression but almost in each and every case, it has become a common phenomenon that complainant causes delay in the disposal of such urgent petitions.
These delaying tactics are consistently pressed into service in a well calculated manner to thwart the grant of bail and even the progress in the trial of the accused by deliberately avoiding the Court process, not procuring counsel to plead its case well in time and also withholding witnesses from the trial Court.
10. Today, the major factor causing delay in the disposal of interim/Misc. application is the conduct of complainant party more particularly in the matter of petition for grant of bail. Invariably the complainant party misuses the privilege conferred on it in the recent past, abuses the process of the Court through different tactics and indulges in avoiding the process of the Court. Adjournments are obtained on one pretext or the other in case its presence is procured. The pendency of bail petitions before higher Courts has direct bearing on the progress of investigation, inquiry and trial before the police and the lower Courts. This menace of grave magnitude now requires to be arrested effectively otherwise it is going to derail the scheme/policy devised for the early disposal of criminal cases.
11. True that after the enactment of "Qisas and Diyat" laws contained in Chapter XVI of the PPC read with Section 345 Cr.P.C., the complainant/victim or the legal heirs of the deceased have been conferred upon the privilege to compound such offences by receiving Diyat etc. However, despite radical changes introduced, no corresponding amendment has been made in the provision of Sections 497/498 Cr.P.C. particularly in the 5th proviso thereof and the State/prosecution alone has been conferred upon the right of audience and notice is essentially to be issued to it before grant of bail to an accused charged for non-bailable offence/offences. Similarly no such condition with regard to the privilege of the complainant/victim or L.Rs, of the deceased has been added to Section 426 Cr.P.C. albeit the higher Courts being influenced by amendments so introduced, have widened the scope of the privilege of the victim/complainant and L.Rs, of the deceased and have held that before granting bail, they be put on notice. It was indeed rationale and reasonable approach at the time when these changes in law were introduced but the privilege so conferred upon is now being extensively misused causing delay in justice to the prejudice of accused person and defeating the cardinal principle that delay in the delivering of justice amounts to denial of justice, therefore, it is high time to strike a fair balance between the favour extended and its scope so that any disgruntled victim/complainant or L.Rs, of the deceased might not be in a position to thwart the process of justice at their whims and wishes.
12.Recently, the highest forum i,e, the Judicial Policy Making Committee headed by Honourable the Chief Justice of Pakistan has described the time limit for disposal of bail petitions and matters of alike nature, therefore, it has become more essential to reduce the scope of the privilege of the complainant party in such like matters and to put it into the correct channels.
13. To reduce delay in disposal of bail petitions and other matters of similar nature, at the time of filing petitions, notice/notices be issued through registered post A.D. to the complainant/victim and the L.Rs, of the deceased on the address given in the F.I.R., attached documents in a criminal case at the pattern of Order 43 Rule-3 CPC and certificate to that effect shall be essentially attached with the petition duly signed by the counsel or the party filing the petition along with the postal receipts and the office of the Court shall issue only one notice and that too strictly within the purview of Sections 70 and 71 of the Cr.P.C. with a special note of warning to the complainant/victim or legal heirs of the deceased, as the case may be, to the effect that he/they shall engage a counsel before the date fixed for hearing and that no adjournment would be allowed on any ground whatsoever. If despite of such warning note, he/they do not engage a counsel and seek adjournment, that should be disallowed and the bail petition or similar other petitions are to be decided purely on merits with the assistance of the counsel for the State.
Unnecessary adjournments obtained certainly brings to halt the progress of inquiry or trial in the lower Court and the process of investigation by the police in a given case thus, unnecessary delay is caused in the disposal of the main case. The above procedure must be adopted invariably in all such petitions so that the delay so caused through such tactics is done away and the primary object of speedy justice is fully achieved.
14. The above guidelines must be strictly followed by the Courts so that the mischief of causing delay in the disposal of such petitions is reasonably curtailed/reduced in an effective manner.
15.This petition is allowed and the petitioner is granted bail in the sum of Rs, 200,000/- (Rupees two lacs) with two reliable sureties, each in the like amount, to the satisfaction of Maga Judicial Magistrate/trial Court.
These are detailed reasons for my short order of even date.