1. ' SYED HASAN AZHAR RIZVI, J.---Through this Criminal Bail Application, the applicant Mst. Naila Ashar seeks her post-arrest bail in case F.I.R. No,1284 of 2010, under sections 302, 448, 449, 420, 468, 471, 381, 34, P.P.C. Of Police Station Ferozabad, Karachi on the statutory ground of delay in conclusion of trial.
2. ' The facts of the matter, as per F.I.R. Lodged by Mst. Jannet Lorban Fern, are that she is residing at Flat No,F-4, Askari Apartment No,1, Building No,19, near Dehli Colony, Karachi since last 24 years and her Aunt Mst. Victoria Alfred was residing in House No,69-A, Block-6, PECHS, Karachi. One Ashar Bhatti was serving at her house since last 18 years while his wife Mst. Naila Ashar (the applicant) was also serving there since last 4 years. Later on the complainant along with her sister went to London while her Aunt Mst. Victoria Alfred was residing in the said house along with the present applicant and her husband. On 24-4-2009 one Will, was executed by the Deceased in the name of complainant and her sister of the house where her Aunt Mst. Victoria Alfred was residing and the same was kept by the complainant with her Advocate. On 20-9-2009 she was informed by Ashar Bhatti that her Aunt Mst. Victoria Alfred was expired on 19-9-2009 and after completion of her funeral ceremony, Mst. Victoria Alfred was buried. On 22-10-2010 the complainant and her sister came to Pakistan and on 23-10-2010 when she along with her sister went to the house of their Aunt Mst. Victoria Alfred, they saw one signboard in the name of Al-Ghazi Company, where one person namely Muhammad Naseer met with them. On enquiry Muhammad Naseer informed to the complainant that their Aunt sold her house to him about two years back. The complainant asked from him about the whereabouts of present applicant. The complainant was informed that Ashar Bhatti and his, wife Mst. Naila Ashar (the applicant) are residing in the third street of the same vicinity. When the complainant met with the present applicant and found many contradictions in the statement of the applicant, she suspected that Mst. Naila Ashar (the applicant) and her husband Ashar Bhatti had killed her Aunt Mst. Victoria Alfred and lodged F.I.R.
3. ' It is, inter alia, contended by the learned counsel for the applicant that he has moved this Criminal Bail Application only on the ground of statutory delay as the trial of the applicant has not yet been concluded by the learned trial Court. According to the learned counsel, the applicant was arrested on 8-11-2010 and since then she is in continuous custody for more than one and half years for no fault of her. Learned counsel for the applicant further contended that by amendment in section 497, Cr.P.C. Made in the law by Act VIII of 2011 if the accused is a woman cannot be detained for more than one year as her trial has still not been concluded. He further contended that more than 56 dates fixed before the learned trial Court were went all in vain due to different reasons, which cannot go on the part of the applicant. He further urged that there are 15 prosecution witnesses cited in the charge sheet and only two witnesses have been examined by the learned trial Court, one of them is the complainant and many of them are official witnesses and there is no possibility of their evidence in near future and no fruit would be achieved by the prosecution to keep the applicant under custody for an indefinite period. He next argued that the offence is unseen and there is no eye-witness even there is no direct evidence available with the prosecution to connect the applicant with the crime in question. In support of his case, learned counsel has placed reliance upon the case of Muhammad Aslam v. Nazar Khan (2012 SCM R 138), Shabeer v. The State (2012 SCM R 354), an unreported order passed in Civil Petition No,620-K/2011 passed by the honourable Supreme Court of Pakistan, an unreported order passed in Criminal Bail Application No,722 of 2011 passed by a Single Bench of this Court.
4. ' On the other hand, Mr. Sadaat Yar Khan, learned counsel for the complainant has vehemently opposed the grant of bail to the applicant, as the case of the applicant falls in the prohibitory clause and she is not entitled to be released on bail. He further contended that the applicant cannot take advantage of delay, which is not attributed to the Complainant side and/or prosecution side. According to the learned counsel for the complainant, in the dates referred to by the learned counsel for the applicant, even one adjournment has been sought by the learned counsel for the complainant. The case was being adjourned to so many dates as the Court was lying vacant, strikes in Court, Presiding Officer was busy in training etc., and not at the request of the counsel for the complainant and the complainant should not be suffered for such delay. He further contended that there are ample materials available on record, which connects the applicant with the commission of offence. He next argued that this is fourth time, the applicant has moved her bail application. According to the learned counsel, Criminal Bail Application No,194 of 2011 moved by the applicant, was dismissed by this Court as well as another Criminal Bail Application No,2090 of 2010 was also dismissed by the learned IIIrd Additional District and Sessions Judge, Karachi East. Even on the ground of statutory delay, the learned 1st Additional District and Sessions Judge, Karachi East has already refused to grant bail to the applicant. According to the learned counsel, after exhumation of grave and postmortem of the Deceased, it transpired that the death of the Deceased was not natural and she was killed by pressuring on her neck. Learned counsel further contended that the complainant and he sister have fully implicated/nominated the applicant and her husband in the F.I.R. And there is every likelihood that the applicant would escape if she is released on bail because the co-accused Ashar Bhatti husband of the applicant has already been shown as absconder in the challan. Learned counsel has placed reliance upon the case of Muhammad Siddique v. Muhammad Behram (1998 PCr.LJ 358), Muhammad Nawaz v.
5. The State (2002 SCM R 1381), Malik Aqeel v. The State (2011 SCM R 170), Rahim Bakhsh v. Shah Nawaz (2003 SCM R 1966), Shahzad Ahmed v. The State (2010 SCM R 1221), Mirza Shaukat Baig v. Shahid Jamil (PLD 2005 SC 530), Hassan v. The State PLD 1996 Kar. 487 and Hussain v. Ziaul Haq (1983 SCM R 72).
6. ' Ms. Rahat Ehsan, learned APG has strongly opposed the bail plea of the applicant while supporting the arguments of the learned counsel for the complainant.
7. ' I have heard the learned counsel for the applicant, learned counsel for the complainant as well as learned APG at great length and perused the entire material available before me.
8. On perusal of the entire record, it reveals that the applicant is in continuous custody since 8-11-2010 and out of 15 witnesses shown in Column of witnesses in Charge Sheet only two witnesses have been examined. After lapse of more than one year examining of only two witnesses in the murder case with which the applicant has been charged, there is a question mark either on the part of the prosecution to produce witnesses or the learned trial Court proceeding the case in lenient manner and has failed to procure the attendance of prosecution witnesses on dates of hearing.
9. ' It is more advantageous here to decide the matter in hand, the newly-added provisions to section 497, Cr.P.C. Vide Act VIII of 2011 is reproduced hereinbelow:--
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 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 for an act of terrorism punishable with death or imprisonment for life."
10. ' Upon perusal of the newly-added provision of section 497, Cr.P.C, it transpired that where the 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 in case of a woman exceeding one year and whose trial for such offence has not concluded 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 of 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.
11. ' Having considered the submissions made before me by the learned counsel for the parties, I have also perused the newly-added provisions to section 497, Cr.P.C. Vide Act VIII of 2011, which entitles an accused for enlargement on bail, after having remained in custody 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 unless in the opinion of the Court he/she was found responsible for causing delay during such period or he/she was a hardened, desperate or dangerous criminal or was accused for an act, of terrorism punishable with death or imprisonment for life, which is not the position in the instant case.
12. It is an admitted position that the applicant is a woman and there is no previous criminal record available against her on record. Nothing available on record that the applicant is a hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life. The delay in the proceedings before the learned trial Court is not attributed to the applicant as she is in custody B since 8-11-2010 and there is no possibility to conclude the trial in near future and the applicant cannot be kept behind the bars for an indefinite period. The accused was arrested on 8-11-2010 and since then she is in the custody, despite framing of charge on 23-4-2011, only few Prosecution Witnesses have been examined and neither the prosecution evidence has been concluded nor there is any reasonable possibility of conclusion of trial in near future.
13. ' In view of the above, I am of the opinion that the learned counsel for the applicant has made out a case of bail. Consequently, the applicant is granted bail subject to her furnishing two solvent sureties in the sum of Rs,5,00,000 (Rupees Five Lac only) each and PR Bond in the like amount to the satisfaction of the learned trial Court.
14. ' The Criminal Bail Application No,335 of 2012 stands disposed of in the above terms.
15. ' The observations made hereinabove are tentative in nature and the same shall not effect on the merits of the case, as the applicant has been granted bail only on the ground of statutory delay and the main case may be decided purely on merits.
16. ' However, it is made clear that there is a remedy available to the Prosecution to move an application for cancellation of to the applicant before the Competent Forum, if the applicant misuses the concession of bail, avoids or delays the proceedings and tampers the prosecution witnesses at any stage of trial.