' MUHAMMAD TASNIM, J.---Applicant is booked in Crime No.232 of 2070, under section 365, P.P.C., Police Station Nazimabad. Through this bail application, applicant seeks bail. In the first place present applicant filed bail application before learned II-Additional Sessions Judge, Karachi- Central, who after hearing the parties dismissed the bail application vide her order dated 31-3-201L
2. Brief facts, as per F.I.R., are that F.I.R No.232 of 2007 Police Station Nazimabad was lodged by the complainant Sardar Ahmed Khan, stating therein that his son Asim, aged about 25 years left house of the complainant on 5-10-2007 at 8-30 p.m, but did not return home until late hours.
Complainant made telephones calls on the mobile number of his son, but no one attended the phone. It is further stated that another son of the complainant received SMS on his mobile phone allegedly from Asim, stating that do not take tension he will return back by tomorrow and then second SMS was received by other son of the complainant allegedly from Asim assuring to come by afternoon. After getting no information, the complainant lodged present F.I.R.
3. In support of above bail application, learned counsel has submitted that apart from the above F.I.R another F.I.R was lodged by A.S.-I. Mohammad Faiz of Police Station Taimuria having F.I.R No.513 of 2007 dated 9-10-2007 at Police Station Taimuria and as per F.I.R A.S.-I. Ali Sher informed the complainant that at Police Station Gabol Town Al-Habib Kanta Sector 16-B, near footpath one drum was lying there. Inside the drum there was a dead body. Accordingly through a private Suzuki said drum was sent to Abbassi Shaheed Hospital- for mortuary and in presence of A.S.-I. Ayaz and S.-I.
Kamar Kayani the body was removed from the drum and postmortem was conducted by Dr. Sajjad. However cause of death was unknown. Thereafter dead body was sent through Edhi ambulance for shifting it to cold storage. Learned counsel has submitted that Asif left his house on 5-10-2007, whereas first F.I.R No.232 of 2007 was lodged on 8-10-2007 after delay of three days, which has not been explained. Learned counsel further submitted that dead body was buried by the Edhi officials, but complainant in F.I.R No.232 of 2007 never claimed dead body from Edhi. He further submitted that present applicant was arrested on 23-3-2008, but no recovery, whatsoever, was effected from the present applicant/ accused. Learned counsel further submitted that medical report does not show the cause of death. He further submitted that P.W Muhammad Miran in his statement under section 161, Cr.P.C. Recorded on 24-3-2008 stated that he saw three .Accused persons including present applicant on 5-10-2007. Learned counsel further submitted that there is no material available on record, which connects the present applicant/accused with the commission of offence and more than three years have passed, but trial has not been concluded. Learned counsel further submitted that there are in all 21 P.Ws., and out of 21 P.Ws. Only six P.Ws. Have been examined till date. He further submitted that only on the ground of delay in trial, the applicant is entitled to bail. Learned counsel further invited my attention to Code of Criminal Procedure (amendment) Act, 2011, whereby amendment has been brought about in section 497 of Cr.P.C. Learned counsel has further submitted that case of the applicant is fully covered as under the new amendment in section 497, Cr.P.C. Which provides that an accused of offence punishable with death, if has been detained for such offence for continuous period exceeding two years and delay in trial of the accused has not been occasioned by an act or omission of the accused or any other person acting on his behalf. It further provides that such accused person, is not previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment' 'for life. Learned counsel submitted that in the case in hand delay in trial is not attributable to the present applicant and more than three years have passed, but applicant is in custody. He has further submitted that present applicant is neither previously convicted offender for an offence punishable with death or imprisonment for life and is not a hardened, desperate or dangerous criminal nor he is accused of an act of terrorism punishable with death or imprisonment for life. Learned counsel has further submitted that on this ground alone, the applicant is entitled to bail. - Learned counsel in the end submitted that perusal of the diary-sheets of the learned trial Court would show that delay in trial has been occasioned either due to seeking adjournment by other co-accused or matter has been adjourned by the Court or adjournment was prayed for by the prosecution. He further submitted that present applicant may not be penalized for the acts of co-accused, the prosecution and the Court. He further submitted that there is no probability of conviction of present applicant in this case.
Learned counsel has also invited my attention to the letter dated 27-1-2010 addressed to M.I.T-1 of this Court by IV-Additional Sessions Judge, Karachi Central, stating therein that accused Adeel Mansoor is the cause of delay in the.Proceedings of the case and she further stated that Adeel Mansoor is in habit of seeking adjournment on one pretext or the other and has not engage any Advocate till today with mala fide intention and reasons best known to him. Learned counsel has further invited my attention to the application written by the present applicant to the honourable Chief Justice of Pakistan for early disposal of his case. He has also invited my attention to the application written by mother of the applicant to honourable Chief Justice of Pakistan requesting for early trial of the present applicant. He has further submitted that from the above correspondence it is clear that applicant is desperate in early conclusion of the trial, but the same is not progressing on one ground or the other. In the circumstances learned' counsel for the applicant lastly submitted that applicant be admitted to bail. In support of his contentions, learned counsel for the applicant has relied upon following case-law:--
(1) Fida Hussain v. The State and others (PLD 2002 SC 46),
(2) Zar Wali v. The State (2003 PCr.LJ 1446),
(3) Muhammad Akbar Tariq v. The State (1977 PCr.LJ 540),
(4) Amir Ali v. The State (PLD 1960 (W.P) Karachi 753,
(5) Khadim Hussain and another v. The State (1989 PCr.LJ 2432),
(6) Gul Beg alias Nangi v. The State (2005 PCr.LJ 147),
(7) Aarab alias Katoo v. The State (2005 PCr.LJ 555),
(8) Lalu alias Badaruddin v. The State (2011 M LD 186)
(9) Abdul Hameed and others v. The State (2003 M LD 19),
4. ,Conversely Mr. M. Ilyas Khan, Advocate for complainant has vehemently opposed the grant of bail by contending that the case of the applicant falls in prohibitory clause and he is not entitled to bail. He has further submitted that prosecution has sought adjournment only four times throughout the pendency of the case and delay is not attributable to the prosecution. He has further submitted that present applicant cannot take advantage of delay, in proceeding on the, part of co-accused.
He further submitted that there is ample material available on record, which connects the present applicant with the commission of offence. Learned counsel has placed reliance on the following case-law:
(1) Javid-ur-Rehman and another v. The State (2010 SCM R 1744),
(2) Muhammad Nawaz v. The State (2002 SCM R 1381),
(3) Abdul Hameed and others v. The State (2003 M LD 19)...
5. On the other hand learned A.P.-G. Has adopted the arguments of the learned counsel for the complainant and has added that present applicant is connected with the commission of offence he may not be enlarged on bail. When question was asked to the learned what is the material available with the prosecution, which connects the present applicant with the commission of offence 'though the incident was unseen and no recovery was effected from the applicant, Learned A.P.-G. Could not satisfy the Court.
6. I have heard the learned counsel for the parties and have perused the record and the case-law cited at the bar.
7. From the perusal of the record, it A appears that incident was unseen. Dead body was not recovered on the pointation of the present applicant. Medical report does not support the case of the prosecution. Dead body was found on the street in a drum and postmortem was conducted on 9-10-2007, present applicant was arrested on 23-3-2008. Prior to arrest of the present applicant no one has asked any question to the present applicant about the son of complainant. The medical report shows that cause of death is unknown. More than three years have passed, but trial has not been concluded.
8. Now taking up the ground of delay for grant of bail to the present applicant, it will be advantageous to reproduce the amendment in section 497, Cr.P.C., whereby amendment has been brought about through Code of Criminal Procedure (Amendment) Act, 2011, which is as under:-- "Provided further that the Court shall, except where it is of the opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf, direct that any person shall be released on bail---
(a) Who, being accused of any offence not punishable with death, has been detained for such offence for a continuous period exceeding one year or in case of a woman exceeding six months and whose trial for such offence has not concluded; or
(b) Who, being accused of an offence punishable with death, has been detained for such offence for a continuous period exceeding two years and in case of a woman exceeding one year and whose trial for such offence has not concluded: ' Provided further that the provisions of the foregoing proviso shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Court,- is a hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life."
9. An examination of the newly-added provision in section 497, Cr.P.C., would show that where Court is of the opinion that delay in trial of the accused has not been occasioned by an act or omission of the accused or any person acting on his behalf, direct that such accused person be released on bail, who is accused of an offence punishable with death, has been detained for such offence for- continuous period exceeding two years and trial has not concluded provided that the above benefit will not be available to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the court, is a hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life.
10. The diary-sheets of Sessions Case No.113 of 2008 has been filed starting from 24-3-2008 till 24- 5-2011. An examination of the diary-sheets shows that throughout proceedings, the present applicant/accused sought adjournment only once in the year 2009 on 27-9-2009 and he sought adjournment twice in the year 2010 on 18-1-2010 and 15-4-2010. In the year 2011 he sought only one adjournment on 15-3-2011. Learned counsel further submitted that co-accused namely Muhammad Zubair Khan had filed Bail Application No.528 of 2009 before this Court on 20-5-2009.
Aforesaid bail application of the co-accused was disposed of "directing the trial Court to frame the charge and examine complainant and at least three material witnesses in the case within a period of six months. If the trial Court feels any difficulty/hurdle in securing the attendance of the P. Ws., the same may be intimated to M.I.T.-1. Of the High Court of Sindh, and omission on the part of the trial Court to comply with the aforementioned directions, may be taken as inefficiency on the part of such Court which may entail logical consequences. After expiry of six months from today, the applicant would be free to approach the trial Court with the request to grant bail and may urge any ground which may be available to him on the basis of such recorded evidence". Learned counsel further submitted that in spite of above directions, case has not progressed and only six witnesses have been examined. In addition to the above directions by this Court in Criminal Bail Application No.528 of 2009 for early disposal of the main case the applicant and his mother also moved applications to the honourable Chief Justice of Pakistan for directions to the learned trial Court for early disposal of the case. The perusal of the diary-sheet shows that .During the entire period of detention the present applicant has sought adjournment only four times and more than three years have passed but the trial has not concluded C till date.
A perusal of the diary-sheet of the learned Trial Court further shows that delay in trial is not solely attributable to the present applicant. It is also stated by the learned counsel for the applicant that present applicant is neither previously convicted offender for an offence punishable with death or imprisonment for life or is hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death. The case of the present applicant is fully covered under the new amendment in section 497, Cr.P.C. And he is entitled to bail on this ground alone.
11. Even prior to the amended in section 497, Cr.P.C. Quoted hereinabove, it has been consistent view of the Superior Courts that if delay in trial is not attributable to the applicant/accused he is entitled to be admitted on bail on the ground of hardship.
12. In case of Abdul Hameed v. State 2003 M LD 19 a learned Single Judge of this Court while dealing with delay in trial of an accused person has observed as under:-- "Expeditious and fair trial is a fundamental right of an accused person. The intention of law is that a 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 in 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."
13. In another case of Aarab alias Katoo v. State 2005 PCr.LJ 555 another Single Judge of this Court while dealing with delay in criminal trial has observed as under:--In the case of Muhammad Aslam v. The State 1998 SCMR 2147, the directions of High Court were not implemented and bail was granted by the honourable Supreme Court. Similarly, in the case of Behram v. The State 2003 PCr.LJ 73 there was no compliance of the directions issued two years back therefore, relying on Manzoor Watoo's case reported in 2000 SCMR 107 bail was allowed. In the case of Abdul Hameed v. The State 2003 MLD 19, this Court took note of the detention of two years and eight months and allowed concession of bail since the trial was making no progress. Similarly, in the case of Punhal v. The Stated 2004 PCr.LJ 90 considering detention without trial, concession of bail was allowed.
Similarly, this Court on examining a large number of authorities on the point granted bail in Shabbir v. State 2003 PCr.LJ 1521 where the period of detention was two years eleven months and twenty-four days."
14. Lastly a learned Division Bench of this Court in the case of Gul Beg v. State 2005 PCr.LJ 147 has dealt with the delay in trial in the following words:-- "It is not disputed that the applicant is continuously in custody for last more than four years and trial has not been concluded so far. We find ourselves in respectful agreement with the view taken by the honourable Supreme Court in In the case of Muhammad Aslam v. The State 1998 SCMR 2147, the directions of High Court were not implemented and bail was granted by the honourable Supreme Court. Similarly, in the case of Behram v. The State 2003 PCr.LJ 73 there was no compliance of the directions issued two years back therefore, relying on Manzoor Watoo's case reported in 2000 SCMR 107 bail was allowed. In the case of Abdul Hameed v. The State 2003 MLD 19, this Court took note of the detention of two years and eight months and allowed concession of bail since the trial was making no progress. Similarly, in the case of Punhal v. The Stated 2004 PCr.LJ 90 considering detention without trial, concession of bail was allowed. Similarly, this Court on examining a large number of authorities on the point granted bail in Shabbir v. State 2003 PCr.LJ 1521 where the period of detention was two years eleven months and twenty-four days."
14. Lastly a learned Division Bench of this Court in the case of Gul Beg v. State 2005 PCr.LJ 147 has dealt with the delay in trial in the following words:-- "It is not disputed that the applicant is continuously in custody for last more than four years and trial has not been concluded so far. We find ourselves in respectful agreement with the view taken by the honourable Supreme Court in the above cited cases that delay per se is no ground for grant of bail but in the case where it appears to be shocking and scandalous, as in this case, the court can exercise its discretion in favour of an accused."
15. For the reasons mentioned in paragraph-7 of this order coupled with delay in trial of the applicant in the case, the present applicant was admitted to bail by a short order dated 1-6-2011, these are the reasons for the same.