' MUHAMMAD TASNIM, J.---Applicant Zia-ud-Din is booked in Crime No,1429 of 2010, under section 324/109/34, P.P.C. Police Station Ferozabad, Karachi. Applicant in the place applied for bail before learned Sessions Judge, Karachi-East, who dismissed the same vide order dated 27-10-2011.
Against the aforesaid order present bail application has been filed.
2. Precisely, the facts of the prosecution case are that the complainant Farooq H. Usman had lodged F.I.R. At Police Station Ferozabad on 26-12-2010, stating therein that on 20-12-2010 at 2-15 p.m. While his son Fareed along with his friend Zain-ul-Abdin was having conversation with each other, in the meanwhile Zia-ud-Din with his .12 bore gun and with intention to kill fired towards his son Fareed, who resultantly received injuries at his abdomen and hands. The injured was shifted to hospital by his friend for treatment, thereafter the F.I.R. Was lodged.
3. Mr. Naveed Ali, learned counsel for the applicant has pressed this bail application on the sole ground of statutory delay and has submitted that the applicant is in custody ever since 26-12-2010, but till date trial has not been concluded. He has further submitted that earlier the applicant had filed Criminal Bail Application No, 932 of 2011 before this Court, but bail was not granted to the applicant, however direction was issued to the trial Court to conclude the trial within a period of 45 days and pass judgment. Learned counsel says that said order was not complied with and the trial is still pending before the learned Trial Court. He also submits that after passing of the above mentioned order on number of dates the prosecution witnesses remained absent and the trial is being delayed due to non-appearance of the prosecution witnesses forcing the trial Court for issuance of bailable warrants for the appearance of prosecution witnesses. He further says that as a last resort learned trial Court was forced to issue non-bailable warrants for procuring the attendance of the prosecution witnesses. He further submits that all the private prosecution witnesses have been examined, but three official witnesses i,e, 1.0., Doctor and mashir of arrest are yet to be examined. In support of his contention learned counsel has heavily relied upon the Diary Sheet of the Trial Court to contend that delay is not attributable to the applicant and more than one year has passed, but trial has not been concluded. He further submits that applicant is not a previously convicted offender for an offence punishable with death or imprisonment for life. He also submitted that applicant is not a desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life. Learned counsel for the applicant in support of his contentions relied upon the following case law and unreported judgments:-
(1) NAZIR HUSSAIN v. ZIAUL HAQ AND OTHERS (1983 SCM R 72).
(2) MUHAMMAD SIDDIQUE v. MUHAMMAD BEHRAM AND ANOTHER (1998 PCr.LJ 358).
(3) BARKHURDAR V. LIAQAT ALI AND OTHERS (PLD 1977 434),
(4) ZAHID HUSSAIN SHAH V. THE STATE (PLD 1995 SUPREME COURT 49),
(5) MIRZA SHAUKAT BAIG AND OTHERS V. SHAHID JAMIL. AND OTHERS (PLD 2005 SC 530), (6), ARBAB ALIAS QASIM V. THE STATE (2006 M LD 1846),
(7) SYED FAISAL HUSSAIN V. THE STATE (2009 YLR 24),
(8) ORDER PASSED BY HONOURABLE SUPREME COURT OF PAKISTAN IN CIVIL PETITION NO. 620-K OF 2011, DATED 11-8-2011 (SYED MAQSOOD AHMED V. THE STATE AND OTHERS),
(9) ORDER PASSED BY. LEARNED DIVISION BENCH IN C.P.NO.D-1854/2011 DATED 20-6-2011 (SYED MAQSOOD AHMED V. THE STATE AND OTHERS)
(10) ORDER PASSED BY LEARNED DIVISION BENCH OF THIS COURT IN CRL. BAIL APPLICATION NO.382 OF 2011 (ATIF AZIZ POLANI V. THE STATE) DATED 16-5-2011,
(11) ORDER PASSED IN CRIMINAL BAIL APPLICATION NO:565 OF 2011 (SYED HASNAIN RAZA ZAIDI V. THE STATE) DATED 2-6-2011.
4. Conversely, learned A.P.-G. Has vehemently opposed the grant of bail. He submitted that all the prosecution witnesses who were examined by the trial Court have fully implicated applicant and the applicant is not entitled for bail. He submitted that trial is about to conclude as most of the witnesses have been examined and only three witnesses are to be examined. However, he admits that more than one year has passed, but trial has not been concluded. He also admits that delay in trial is not attributable to the applicant as per record of the Trial Court. In support of his contentions, learned A.P.-G. Has relied upon the following case-law:--
(1) BARKHURDAR V. LIAQUAT ALI AND OTHERS (PLD 1977 SUPREME COURT 434),
(2) NAZIR HUSSAIN V. ZIAUL HAQ AND OTHERS (1983 SCM R 72),
(3) ARBAB ALIAS QASIM V. THE STATE (2006 M LD 1846), and
(4) SYED FAISAL HUSSAIN V. THE STATE (2009 YLR 24).
5. No one has appeared on behalf of the complainant though on the last date of hearing learned counsel for the complainant was in attendance and today's date of hearing was fixed in his presence, but neither any intimation has been received nor any one appeared on behalf of complainant.
6. I have heard the learned counsel for the parties and have perused the record and the case-law cited at the bar.
7. Per order dated 24-8-2011 in Criminal Bail Application No, 932 of 2011 this Court directed the Trial Court to conclude the trial within 45 days as only few witnesses were to be examined, but from the perusal of the Diary Sheet of the Trial Court it appears that due to delay on the part of the prosecution witnesses trial Court could not comply with the above mentioned order passed by this Court. In the circumstances, the applicant has repeated his bail application in the change circumstances before the trial Court which has been dismissed and against the said order present bail application has been filed by the applicant before this Court. On the last date report from the Superintendent Jail was called as to whether the applicant is a previously convicted offender for an offence punishable with death or imprisonment for life. Such report has been received and from the perusal it appears that the applicant is not a previously convicted offender for an offence punishable with death or imprisonment for life, nor a desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life.
8. Now taking up the ground of statutory delay for grant of bail to the present applicant, it will be advantageous to reproduce the amendment in section 497, Cr.P.C. Through Act VIII of 2011 dated 20-4-2011, 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 persons 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 perusal of the .Diary-sheets of learned trial Court further shows that delay in trial is not attributable to the present applicant. It is also contended by the learned counsel for the applicant that neither the applicant was previously convicted offender for an offence punishable with death or imprisonment for life or applicant is hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death. Such contention is supported by the report from the Superintendent Central Prison Karachi. The case of the present applicant prima facie appears to be covered under the new amendment in section 497 Cr.P.C.
11. Learned counsel for the applicant has invited attention of the Court to the order dated, 11-8-2011 passed by the honourable Supreme Court of Pakistan in Constitution Petition No,620-K of 2011 wherein their lordships while dealing with the bail application on the ground of statutory delay and considering the amendment brought about in section 497, Cr.P.C., which was inserted by Act VIII of 2011 dated 20-4-2011 has dealt with the issue in the following words:--
(6) We have carefully considered the submission made before us by the learned Advocate Supreme Court and Addl. D. P. G.A and perused the material placed on record. Indeed, vide two earlier orders dated 17-12-2009 and 2-11-2010, passed in C. Ps. Nos.D-2550 of 2009 and 1297 of 2010 respectively, petitioner was refused bail up the level of High Court, with directions for the Accountability Court to conclude the trial preferably within a period of three months, but these facts by itself are not sufficient to deny the benefit of section 3 of Act VIII of 2011 dated 20-4-2011 to.
The petitioner, which came into force later on and has given him an independent right for grant of bail on the ground of statutory delay, subject to certain conditions provided therein. For convenience sake, the said newly introduced provision of law is reproduced as under:- "(3) Amendment of section 497, Act V of 1898.---In the said Code, in section 497, in subsection (1) -
(i) in the first proviso, after the word "Years the words "or any woman" shall be inserted;
(ii) the second, third and fourth provisos shall be omitted; and
(iii) in the fifth proviso, for the full stop at the end a colon shall be substituted and thereafter the following provisos shall be added, namely:- ' 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 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 forgoing 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."
(6) Reverting to the proceedings of the case at hand before the Accountability Court, ,we find there is no denial of the fact that even before framing of charge, for no fault on his part, the petitioner remained in judicial custody for a period of over 11 months and even thereafter, as discussed above, for delay in the proceedings of the case for a period of over nine months, he is not responsible to the extent that he can be denied the benefit of above reproduced provision of law, which entitles him for grant of bail if he had remained in continuous custody for a period exceeding one year, as in the instant case.
(7) This being the position, this civil petition is converted into appeal and allowed, impugned order dated 20-6-2011 is set aside and the petitioner is admitted to bail on his furnishing solvent surety in the sum of Rs,1.5 million and P.R bond in the like amount to the satisfaction of the trial Court."
12. In the case of Nazir Hussain (supra), the honourable Supreme Court of Pakistan while dealing with the bail application on the ground of statutory delay has observed as under:-- "(9) The ground of delay for grant of bail in cases falling within the prohibition contained in subsection (1) of section 497, Cr. P. C. Before the effective amendment, was undoubtedly controlled by the discretion of the Court concerned. The facts varied from case to case and accordingly the discretion exercised was creating some anomalies. That is why the Legislature intervened and the law was made more certain. One of the changes affected in the statute from the previous practice in the exercise of discretion, was that the grant of bail on expiry of certain specified period and under certain conditions was made a matter of right and not only of discretion. We do not agree with the learned counsel that the use of the word 'shall' in the third proviso; is in the meaning of 'may'. Learned counsel failed to notice that while in first proviso the word 'may' has been used, in the second and third the word 'shall' has been used with a view to highlight it. Moreover, reading 'may' for the 'word' 'shall' in third proviso would be in large majority of cases to the detriment of the accused and his liberty, when it become due in the context of bail.
We accordingly repel the argument of the learned counsel and hold that word 'shall' in third proviso will have to be read in its ordinary sense. That being so, there is nothing in the entire proviso, its main part as also sub-clause (b) to show the grant of bail on ground of delay in cases covered there under has been left (in a general way) to the discretion of the Court. We also do not agree with the argument that the matter being entirely of the discretion of the Court it is empowered to take into account the expected/apprehended delay."
13. In the case of Zahid Hussain Shah (supra), the honourable Supreme Court of Pakistan once again while dealing with the bail application on the ground of statutory delay has observed: "The right of an accused to be enlarged on bail under the 3rd proviso to section 497(1), Cr.P.C. Is a statutory right which cannot be denied under the discretionary power of the Court to grant bail.
The right of an accused to get bail under the 3rd proviso of section 497(1), Cr.P.C. Is not left to the discretion of the Court but is controlled by that provision. The bail under the 3rd proviso (ibid) can be refused to an accused by the Court only on the ground that the delay in the conclusion of the trial had occasioned on account of any act or omission of the accused or any other person setting on his behalf. The bail under the 3rd proviso ibid can also be refused by the Court if the case of the accused fell under the 4th proviso to section 497(1), Cr.P.C. In all other cases the Court must grant bail. In the case of Wazir Khan v. State 1983 SCMR 427, the petitioner was refused bail by the High Court under the 3rd proviso to section 497, Cr. P. C. On the ground that the delay in the trial had occasioned on account of abscondence of the co-accused in the case. "
14. From the perusal of above quoted judgments of the honourable Supreme Court of Pakistan, it will be seen that through the amendment by section 3 of Act VIII of 2011 dated 20-4-2011 the applicant has been given independent right for grant of bail on the ground of statutory delay subject to certain conditions provided there in. It has been the consistent view of the honourable Supreme Court of Pakistan while dealing-with the bail application on the ground of statutory delay and the honourable apex Court has time and again ruled that above quoted newly added amendment in the section 497, Cr.P.C. Is statutory right which cannot be denied under the discretionary power of the Court to grant bail. The right of an accused to get bail under the aforesaid amendment in section 497, Cr.P.C. Is not left to the discretion of the Court but is controlled by that provision. The bail under the newly added proviso under section 497, Cr.P.C. Can be refused to an accused by the Court only on the ground that the delay in the conclusion of the trial had occasioned on account of an act or omission on the part of the accused or any person acting on his behalf. The bail under the aforesaid provision can also be refused by the Court if the accused is 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.
15. Learned A.P.-G. Though vehemently opposed the bail application on the ground of statutory delay, but did not dispute the position taken by the learned counsel for the applicant that applicant is neither previously convicted offender for an, offence punishable with death or imprisonment for life nor is a hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life.
16. With regard to the contentions of learned A.P.-G. That only three witnesses are remaining to be examined by the prosecution, the trial is about to conclude and the applicant is not entitled to bail on the ground of statutory delay, the learned counsel for the applicant, to meet the above submissions, has relied upon the case of Muhammad Siddique (supra), wherein the honourable Supreme Court of Pakistan while dealing with this aspect has dealt with the issue in the following words:-- So far as the argument advanced by the learned counsel for the appellant that the trial has almost been concluded and thus it was not desirable to allow the concession of bail is concerned, we are of the opinion that when statement of one of the witnesses has yet to be recorded, it cannot be said that the trial has been concluded. The trial would be deemed to be concluded only when the statements of all the prosecution witnesses have been recorded, the statement of the accused under section 342 and the statements of the defence witnesses, if any, have also been recorded. Thus, it cannot be said that in the instant case it was in the fitness of the things to refuse the bail to the accused, despite the fact that he remained in custody for more than two years and nine months, as has been held by the Shariat Court. A reference may be made to a judgment of this Court. Titled Muhammad Riaz v. The State 1998 PCr.LJ 320 wherein the aforesaid proposition has been dealt with in detail."
17. Applying the above test to the case in hand, it will be seen that trial would not be deemed to have concluded when three prosecution witnesses are yet to be examined and in such circumstances concession of bail on the ground of statutory delay cannot be denied to the present applicant.
18. In view of the above settled legal position, the present applicant has made out a case for grant of bail on the ground of statutory delay. Accordingly, applicant is admitted to bail on his furnishing solvent surety in the sum of Rs,10,00,000 (Rupees Ten Lacs) and P.R bond in the like amount to the satisfaction of learned trial Court.
19.Further, it is left open for the prosecution to move an application for cancellation of bail before learned trial Court in case applicant misuses the concession of bail or avoids or delays the pending proceedings, which shall be heard and decided on its own merits in accordance with law.
20. Since only three witnesses are remaining, the learned trial Court is directed to conclude the trial within a period of one month from the receipt of this order and pass judgment strictly in accordance with law. Learned trial Court is further directed to submit compliance report to this Court through M.I.T-II.
21. Any observation made in the above order is of tentative in nature and shall not affect the case of the prosecution at the trial. Learned trial court shall dispose of the case strictly in accordance with law and the material brought before it.