' MUHAMMAD ALI MAZHAR, J.---The applicant has applied bail in Crime No,247 of 2008 (Sessions Case No, 2 of 2009), in which the main ground is that for last two and half years the prosecution has failed to produce evidence and the trial has not yet been concluded therefore, keeping in view the third proviso which has been revived in section 497, Cr.P.C., the applicant is entitled to be enlarged on bail.
2. The learned counsel for the 'applicant submitted that the bail application was moved in the trial court on the same ground, but vide order dated 7-6-2011, the bail application was dismissed for the reason that the delay in proceedings has been caused by the accused as whenever witnesses appeared, the learned counsel for accused moved adjournment applications, therefore, the trial court observed that the delay in conclusion of the trial is on the part of the accused and not on the part of, the prosecution. Learned counsel argued that this finding is contrary to the diary sheets. In fact, the applicant/accused moved not more than two adjournment applications throughout the proceedings and mostly, the matter was adjourned on complainant's request or due to non- availability of prosecution witnesses and on some dates, jail authorities failed to produce the applicant. He further argued that the co-accused Wasoo had also moved a transfer application in this Court which remain pending and during that pendency R&Ps of the case was called by this Court.
3. The learned counsel for the complainant argued that the trial Court has rightly dismissed the bail application and he contended that no delay has been caused by the complainant, however; he admits that only three witnesses have been examined so far and six more witnesses have to be examined by the prosecution.
4. The learned APG argued that in view of the case diaries attached by the applicant with the bail application and also filed through a subsequent statement, no delay can be attributed to the applicant and he further argued that applicant has only sought one or two adjournment in the trial Court which is quite occasional therefore, he concedes to the grant of bail on the ground of statutory delay.
5. I have carefully examined the case diaries. It is a fact that the applicant was arrested on 27-11- 2008 and the charge was framed on 9-9-2009. The learned counsel for the applicant has attached the case diaries from 9-9-2009 to 11-6-2011 and by way of subsequent statement from 22-6-2011 to 21-1-2012. After examining all the case diaries, it transpires that on few dates, the case was adjourned due to non-production of the applicant by the jail authorities, sometimes the processes were issued to the prosecution witnesses and sometimes the complainant moved adjournment application. From 6-9-2010 to 20-1-2011, the R&P of the case was lying with Member Inspection Team of this Court.
6. In the similar situation, I have held in Criminal B.A. No,675 of 2011 (Zamir v. State) as under:-- "It is quite astonishing to note that delay caused due to non-production of accused persons including applicant by jail authorities, but the delay of all 24 dates have been attributed to the applicant who has no control or say over the Jail Authorities either to produce him or not to produce him in the court. It is the responsibility of jail authorities to produce UTP(s) in the court without any failure on their part. Likewise, it is the responsibility of prosecution to ensure the presence of P.Ws. So that trial may be concluded as soon as possible. If prosecution or jail authorities failed to perform their lawful duties in accordance with law, the court cannot sit idol or as silent spectator but it is the for responsibility of court to ensure that prosecution and jail authorities are performing their lawful B duties properly which is necessary not only dispensation of justice but also required for expeditious criminal administration of justice. It is also strange to note that jail authorities for few dates reported that accused persons are refusing to appear in court and their alleged statement was simply accepted by jail authorities and they informed the court accordingly. It is responsibility of jail authorities/prosecution to ensure attendance of accused persons/UTP(s) in time before the court. On the other hand, it not so simple to comprehend the statement of jail authorities that accused made desire that he does not want to appear before trial court and jail authorities accepted his wish and obliged him. If such type of lame excuses are accepted or allowed then it would be very difficult for the courts to impart justice. If UTP(s) were not produced by the jail authorities for 24 dates it was the responsibility of the trial court to initiate coercive measures to compel the appearance of UTPs as well as prosecution witnesses, but trial court instead of taking coercive action in accordance with law put the entire blame on the applicant and bail application was rejected on the sole ground that custody was not produced by jail authorities and on three dates accused persons themselves chosen not to appear. It is nowhere mentioned that how many show-cause notices were issued to the jail authorities against non- production of UTP(s)/accused on 24 dates. It is also not mentioned whether any complaint was lodged to learned District Judge for taking necessary actions or what action was taken against the prosecution, who failed to produce witnesses in court.
' Chapter (D) of National Judicial Policy, 2009 pertains to "Expeditious Disposal of Cases" and Clause No,1, relates to "Short Term Measures" for criminal cases. In Clause No,10, it is clearly provided that all criminal cases punishment withimprisonment from 7 years and above including death cases shall be decided within a period of one year. In sub-clause (a) of Clause 10, it is necessary for the courts that on receipt of challan, it, should immediately fix the case and issue production order, warrants/notice and according to sub-clause (c), it is the responsibility of courts to take all necessary measures to bind the SHO/I.Os. To produce evidence on the next date. It is further provided in the same chapter that all efforts should be made to produce witnesses and the case property on the first date of hearing and take strict action against the parties or witnesses causing deliberate delays in proceedings. In Clause 12, it is further provided that production before the court for remand/trial is statutory right of every prisoner, therefore, District and Sessions Judge and jail authorities to ensure that prisoners must be produced before court. The District and Sessions Judge should also monitor that while granting remand, all requisite procedural formalities are complied with. Sub-clause (i) of Clause 10 provides that production of prisoners/witnesses and other relevant evidence before the court is the responsibility of prosecution/investigation agency, therefore, concerned authorities should discharge, their responsibility without any failure or slackness. In Sub-clause (ii), it is further provided that prosecution should procure attendance of witnesses on the date of hearing and the court must ensure that no witness should be returned unexamined and the prisoner without any progress in his trial/case. Sub-clause (iii) makes much emphasis that trial court shall not grant unnecessary adjournments particularly on account of failure to produce prosecution witnesses. If any police officer or Investigating Officer of the case is found guilty of deliberate attempts to prolong the trial, trial Court may report the matter to the officer in charge of such police officer for taking necessary action. If in any case it appears that no action has been taken on the complaint, matter may be brought to the notice of Chief Justice through Registrar for initiating contempt proceedings against such police officer, responsible for causing hindrance in conclusion of trial.
Expeditious and fair trial fundamental right of accused persons. The intention of law is that criminal case must be disposed of without unnecessary delay. It will not be difficult to comprehend that inordinate delay in imparting justice was likely to cause erosion of public confidence in the judicial system on one hand, and on the other hand, it was bound to create a sense of helplessness and despair and feelings of frustration and anguish apart from adding to their woes and miseries.
Reference may be made to 2003 M LD 19. At this juncture, I would also like to refer AIR 1941 Sindh 186, in which it was held that what the law contemplates is due diligence and impartiality in the prosecution of the criminal cases. It is not the law that a criminal case should linger long. Similarly in AIR 1942 Calcutta 219, it was held that policy of criminal law is to bring the persons accused of justice as speedily as possible so that if they are found guilty they may be convicted and if they are found innocent, they may be acquitted and discharged. In 2000 SCM R 107, the hon'ble Supreme Court held that object of criminal prosecution is not to punish an under trial prisoner for the offence alleged against him. The object of criminal trial is that the accused is made to face the trial and answer the criminal charge against him.
' In the Criminal Procedure Code various provisions are available for process to compel appearance and the mode of taking and recording evidence and courts may exercise a range of powers to expedite and conclude the trial and in this _regard, awesome guidance in the National Judicial Policy in 2009 has been provided to ensure its due implementation with dynamic approach within the prescribed time. The honourable Supreme Court as already held that when the summonses are issued for the witnesses and the witnesses do not appear in response to it, the reasons therefore must be examined and noted .In the order sheet and where necessary coercive steps should be taken for securing the attendance of witnesses. The Court not to feel so powerless in matter of securing attendance of witnesses. In case of disobedience it is for the Court to use the powers vested in it. Reference can be made to PLD 1984 SC 428".
7. After examining the case diaries, it is clear beyond any shadow of doubt that the applicant alone cannot be held responsible for the delay. The honourable Supreme Court in the judgment reported in 1985 SCM R 1509, held that accused was in custody as under trial prisoner for about three years.
Period for which case was adjourned on accused request, if excluded, accused had been behind bars for more than 2-1/2 years, therefore, accused was granted bail. In this case also, if adjournments sought by the applicant are excluded even then his period of detention is much more than two years.
8. For the foregoing reasons, the applicant is granted bail on F furnishing surety in the sum of Rs,3,00,000 (Rupees three lacs) with PR bond in the like amount to the satisfaction of trial Court.
Since it is an old case, therefore, it is expected that the learned trial court shall conclude the trial within a period of four months.
' The bail application is disposed of.