' MUHAMMAD ALI MAZHAR, J.---The applicant has applied bail in Crime No, 68 of 2008, lodged under sections 302, 337H(2), 147, 148, P.P.C, at Police Station, Daherki..
2. Precisely, facts of the prosecution case are that complainant Sobharo alleged that there is bloodshed enmity with Mazari obhar and others. On 25-3-2008, complainant_ along with his brother was going on motorcycle while his uncles Muhammad Hayat and Morio were on another motorcycle and they were going to attend the Sessions Court, Mirpur Mathelo. When they reached to, new link road leading to Nooran Kot, they saw accused Dadlo duly armed with KK, who came out from, watercourse and made straight fire upon complainant's uncle with intention to commit his murder and accused Rab Nawaz, Sahibdino, Mazari, Zameer (applicant) and Liaquat emerged from both sides of road and holding KKs and they made straight fires upon complainant's uncle Muhammad Hayat, whereas accused Dadlo Kobhar in order to create harassment made aerial firing. Complainant's uncle Muhammad Hayat received fire arm injuries on his chest, right side neck, right arm, right shoulder, right side of abdomen, right thigh, forehead whereas his another uncle Morio received injury on his right side cheek, left side of head, right side of abdomen, and right side of neck exit from left shoulder. After postmortem of dead bodies, complainant had lodged the F.I.R.
3. Earlier, co-accused Rab Nawaz in the same crime had moved bail application in the Court of learned 3rd Additional Sessions Judge, Mirpur Mathelo which was dismissed vide order dated 22-1- 2010, thereafter he moved Bail Application No,1167 of 2010, which was dismissed by this Court vide order dated 3-6-2011 with the direction to the trial Court to record evidence of material prosecution witnesses within a period of four months and then the applicant shall be entitled to move fresh bail application. It was further directed that the applicant is also at liberty to apply for bail before the trial court on the ground of delay in the trial of the case if trial is not concluded within time prescribed by law and such delay is not due to act or omission on the part of the applicant.
4. The present applicant had applied bail in the trial court in Sessions Case No,340 of 2008 on the ground of statutory delay, but the same was dismissed vide order dated 5-7-2011, thereafter present bail application has been moved in this Court.
5. The learned counsel for the applicant argued that the applicant has been falsely implicated and there are no reasonable grounds to believe that he has committed any offence. The applicant was arrested on 4-10-2008 and the charge was framed on 4-8-2009 and since then the matter is lingering on and there is no possibility of concluding the trial in near future. The applicant is behind the bars for last three years and no delay can be attributed to the applicant. The learned counsel relied upon amendment made under section 497, Cr.P.C. By virtue of Code of Criminal Procedure (Amendment) Act, 2011 and argued that delay in the trial has not been occasioned by an act or omission of the applicant and since he is in custody for last three years, therefore, he is entitled to be released on bail. He further argued that the applicant is neither previously convicted for an offence punishable with death or imprisonment for life nor he is desperate or hardened criminal. In support of his arguments, he relied upon the following case-laws:-- 1985 SCMR 1509 (Abdullah v. The State). In which 'it was 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.
1999 SCMR 2147 (Muhammad Aslam v. The State). In this case, it was held that despite direction of High Court trial against the accused had not been completed by the Trial Court within the specified period. Prosecution was unable to give any explanation for noncompliance of the said order of High Court. Petition for leave to appeal was converted into appeal which was allowed and the accused was admitted to bail in circumstances.
2003 PCr.LJ 73 (Behram v. The State). In this case, it was held that despite direction of High Court issued about two years back trial had not yet commenced. Since the charge could not be framed within last 18 months, period required for conclusion of the trial was not difficult to be predicted. Fair and expeditious trial was the fundamental right of the accused which could not be denied.
Hardship suffered by the accused on account of delay was quite obvious and the same could not be overlooked. Bail was allowed to accused in circumstances.
2005 PCr.LJ 555 (Aarab alias Katoo v. The State). In this case, it was held that bail plea was advanced by accused solely on the ground of hardship by him as he was in custody for a period of three years, nine months and eighteen days without trial. Trial had not been taken or set for no fault on the part of accused. State Counsel had conceded to grant bail to accused. Accused was admitted to bail, in circumstances.
' PLD 1986 Karachi 646 (Wazir v. The State), in which it was held that case pending trial for more than two years without any progress. Mere fact that applicants allegedly committed two murders, held, per se not sufficient to dub them as desperate, dangerous and hardened criminals.
Applicants allowed bail, in circumstances.
2003 MLD 19 (Abdul Hameed. v, The State). In this case, it was held that expeditious and fair trial is 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.
6. Conversely, the learned counsel for the complainant argued that delay has been caused in trial due to applicant and mostly adjournments have been sought by their Advocate, therefore, applicant has no right to claim bail on the ground of statutory delay. He further argued that trial court has dismissed bail application on the ground of statutory delay vide order dated 5-7-2011 in which it is clearly mentioned that no delay has been caused by complainant and mostly matter was adjourned due to nonappearance of accused persons. He further argued that though this court in case of another accused involved in same crime while dismissing bail application directed the trial court to conclude the trial within a period of four months, but this order was an administrative in nature and in case trial has not been concluded by the trial court keeping in view directions of this court will not make out ground for seeking bail by the applicant. In support of his arguments, he relied upon following cases: 2006 PCr.LJ 864 (Abid Sohail y. The State). In this case, learned Judge held that accused had sought bail on the ground that in previous bail application direction was issued to the trial court by High Court to conclude the trial of accused within next three months but such directions had not been complied with. Such directions issued by High Court were only administrative and same would not confer any right of bail on accused.
' PLD 2011 Lahore 110 (Iftikhar Hussain v. The State). In this case, learned Judge held that direction issued by High Court to trial court regarding conclusion of trial within specified period was only administrative direction and same would not confer any right of bail on accused if direction was not complied with by the trial court on account of any exigency or any fresh development in the case.
2003 MLD 79 (Muhammad Nawaz v. The State). In this case, learned Division Bench of this court held that bail was sought on the sole ground that direction contained in the High Court order passed on previous bail application of accused for disposal of their case within two months had not been complied with. High Court clarified that indulgence shown by superior courts by issuing such directions for the trial court to conclude the case within some specified period were only meant/ aimed to expedite proceedings of the case against the accused and not to arm them with so-called new ground for bail in case of noncompliance of such a concept was totally alien to any statutory provision.
7. The learned A.P.-G. Supported the arguments of learned counsel for the complainant, opposed bail application and argued that applicant himself has caused delay in the trial, therefore, he is not entitled to be released on bail on the ground of statutory delay.
8. After hearing the arguments of learned 'counsel, I would like to first refer to the impugned order by which bail application of applicant was rejected by the trial court. It is an admitted position that applicant has not applied bail on merits, but the present bail application has been moved keeping in view the amendment made under section 497, Cr.P.C. Which gives statutory right of bail on the ground of delay provided that delay in the trial has not been occasioned by an act or omission of the accused or any other person acting on his behalf. The learned trial court had considered the ground of statutory delay in its bail rejection order. It is admitted position that applicant was arrested on 4-10-2008 and charge has been framed by trial court on 4-8-2009. Trial court observed in the order that after framing of charge case could not be proceeded for at least 24 dates due to non-production of one or the other accused including applicant by jail authorities in spite of the fact that complainant was in attendance on each hearing except two or three dates.
He further observed in the order that despite issuance of production order, jail authorities were not producing one or other accused, therefore, show-cause notice was issued to jail authorities. He further referred to case diaries dated 22-2-2010, 7-4-2010 and 27-4-2010. I have also examined the case diaries. On 22-2-2010, accused Dadlo and Rab Nawaz were not produced by jail authorities while applicant Zameer was produced. On 7-4-2010, again applicant was produced while accused Dadlo and Rab Nawaz were not produced by jail authorities and so far as case diary dated 27-4- 2010 is concerned, accused Zameer, Rab Nawaz and Dadlo all were not produced by jail authorities on the ground that they are avoiding to appear in the court. Trial court also issued process for prosecution witnesses and called the case property for next date.
9. On 4-8-2009 charge was framed and thereafter matter was being adjourned for the reasons that sometime custody was not produced by jail authorities and sometime custody was produced but P.Ws. We're not present. However, on most of the dates complainant was present and he was directed to bring all P.Ws. On the next date. Some case diaries are showing that summonses/BWs of P.Ws. Were also issued to procure their attendance. Main ground for dismissal of bail application by the trial court is that on 24 dates, custody of the accused was not produced by jail authorities and on 3 dates i,e, 22-2-2010, 7-4-2010 and 27-4-2010 jail authorities gave report in writing that applicant and other accused refused to appear before the court and such conduct of accused including applicant is indicative of the fact that they are themselves responsible for delay in the trial. Of case, therefore, bail application was dismissed.
10. 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 idle or as silent spectator but it is the responsibly of court to ensure that prosecution and jail authorities are performing their lawful duties properly which is necessary not only for 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.
11. 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 with imprisonment 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 S.H.O./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 un examined 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 incharge 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.
12. Expeditious and fair trial is 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 MLD 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 to 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 SCMR 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.
13. It is obvious from the impugned order that entire delay has been attributed to the applicant which is contrary to the record. Mostly, the reason for delay as observed by trial court in its order is non-production of UTP(s) by the jail authorities and on three dates it was said that UTP declined to be produced in court. However, subsequent diaries filed by learned counsel for complainant after dismissal of bail application shows that few adjournments were granted on the request of applicant and other accused persons but the fact remains that applicant is in custody since 4-10- 2008 and the charge was framed on 4-8-2009 and so far, the trial court has been able to record only examination-in-chief of complainant on 21-9-2011. The word "Prosecution" means judicial determination of the guilt or innocence of the accused. It is the duty of the investigating agency to bring the truth on surface and prove the case against an accused beyond any reasonable doubt.
All facts and aspects of prosecution case have to be highlighted and proved by prosecution in order to bring guilt home to accused.
14. 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 S.C.
428.
15. The learned counsel for complainant and learned A.P.-G. Did not argue that the applicant is previously convicted offender for an offence punishable with death or life imprisonment. So far as the case-law cited by learned counsel for the applicant is concerned, same are relevant to the cases of hardship/statutory delay and also attracting to the facts and circumstances of this case.
On the other hand, the case-law relied upon by learned counsel for complainant are mostly related to the cases in which D directions were issued by High Court for concluding trial which for some reasons could not be complied with by the trial court, therefore, High Court in those cases held that direction issued by the court for concluding the trial was administrative order and cannot be considered a new ground for bail. Though in one case reported in 1999 SCMR 2147, Hon'ble Supreme Court held that despite directions of the High Court, trial against the accused had not been completed by the trial court within specified time, prosecution was unable to give any explanation for noncompliance of the said order of High Court. Petition for leave to appeal was converted into appeal and accused was admitted to bail in circumstances.
16. In the case in hand, applicant has applied bail on statutory ground and not on the plea of non- compliance of earlier directions issued by this Court in the bail application of co-accused Rab Nawaz vide order dated 3-6-2011. The applicant is behind the bars and since the date of framing of charge on 4-8-2009, the learned trial court has been able to record only the examination-in-chief of the complainant and failed to ensure the regular attendance/ production of applicant and attendance of prosecution witnesses which is in fact the main cause of delay and even if the adjournments sought by the present applicant is excluded, his period behind the bars is more than two years which entitles him to claim the bail on the ground of statutory delay. In the case reported in 1985 SCMR 1509, the honourable Supreme Court on the same rationale held that even if the period for which the case was adjourned at the accused requests is excluded, he has been behind the bars for more than two and half years.
' For the foregoing reasons, the applicant is directed to be released on bail on furnishing surety in the sum of Rs,200,000 (Rupees two lacs) with PR bond in the like amount to the satisfaction.
17. Of trial court. The trial court is once again directed to conclude the trial expeditiously within a period of two months.