SHAHAB SARKI, J.---The applicant/accused Azeem Sarwar son of Sarwar Lal Din seeks his post arrest- bail in Crime No,218 of 2010, under sections 302, 324, 392, 34, P.P.C. Registered at Police Station Balouch Colony, Karachi.
2. Briefly the facts, as narrated in the F.I.R., are that the complainant namely Furqan Ahmed son of Ahmed Buksh recorded his statement, under section 154, Cr.P.C. In emergency ward of JMPC, dated 2-6-2010 at about 10-40 a.m., that he is residing at House No,8, Gali No,10, Sector-F, Manzoor Colony along with his family and he is working at CDGK as Additional Director Media Management. Today, on 2-6-2010, he along with his son Danish aged about 21 years were sleeping at the roof of his house, when at about 6-00 a.m., four persons came at the roof, who were equipped with weapons.
As soon as they came they put the hands on the mouth of the Complainant, and started hitting him from the Butt of the Pistol, over his head and face. They also tied his hands and feet and thereafter locked him in the bathroom. Two accused persons on gunpoint took his son Danish downstairs and locked his family in a bathroom. When police came they opened the door and untied his hands and feet and brought him down. He saw that the hands of his son Danish were tied behind his back and there was cloth on his nose and neck and he was lying on the first flour of the house, the blood was oozing from his nose and mouth. He further saw that the cash, gold ornaments and some important documents of the house were missing. He was brought by his relatives Abdul Rasheed and Muhammad Israr to JMPC by vehicle.
3. It is, inter alia, contended by the learned counsel for the applicant/accused that the instant bail application has been filed solely on the ground of statutory delay. According to the learned counsel, the applicant/accused was arrested on 1-8-2010 and since more than three years he is in continuous custody with no progress in the trial. Learned counsel has further argued that there are more than 19 prosecution witnesses and so far only five witnesses have been examined and it is not likely that the trial will conclude in near future. According to the learned counsel, on more than 40 dates of hearing the case was being adjourned due to absence of the Presiding Officer and/or prosecution witnesses and Court staff and also on the part of the strike call by the advocates, which in any manner would not go on the part of the applicant/accused. He has further stressed that only on 12 occasions the case could not be proceeded on account of absence of defence counsel, which is not attributable to the applicant/accused. Even if the said 12 occasions are deducted from the total period for which the applicant/accused is behind the bars, the applicant/accused has remained in custody for more than two years for no fault of his. He has further argued that for the last so many dates the Presiding Officer was on leave and even the prosecution witnesses are not regularly attending the Court for their evidence. He has further urged that more than 37 times, the case of the applicant/accused could not be proceeded, which is not attributable on the part of the applicant/accused. He has finally argued that the applicant/accused is neither previously convicted nor hardened, dangerous and desperate offender. In support of his case, learned counsel for the applicant/accused has relied upon the case diaries of the learned trial Court and the case-law reported in 2012 YLR 2914 (Syed Naveed All v. The State), Naimat Khan v. The State (2013 PCr.LJ 1162) and 2011 PCr.LJ 1910 (Taj Muhammad v.
The State) as well as Gazette of Pakistan dated 21-4-2011 regarding amendment of section 497, Act V of 1898.
4. Mr. Muhammad Habib Jalib, learned counsel appearing on behalf of the complainant has vehemently opposed the grant of bail, as according to him, the applicant/accused is not entitled for concession of bail on the ground of statutory delay. He has further argued that more than 20 times the case of the applicant/accused could not be proceeded due to the act of the defence counsel and the delay to proceed with the matter was caused in the years 2011, 2012, 2013 and 2014, which is attributed on the part of the applicant/accused. He has further urged that in the identification parade, the wife of the complainant has positively identified the applicant/accused before the Magistrate. According to him, the learned counsel for the applicant/accused has referred to many dates of hearing when the strike calls were made by the Bar Councils and the matter could not proceed, though it was not attributable on the part of the applicant/accused, but it does not mean that the learned trial Court and the Prosecution was to be held responsible for adjournments on such strike calls and even if on such dates when the strike was called are excluded, there is nothing left with the applicant/accused to make a ground of statutory delay to release him on bail. Learned counsel for the Complainant, in support of his case, has relied upon the case of Sher Ali alias Sheri v. The State (1998 SCMR 190), Nazir Ahmed v. The State (2004 SCMR 1160), lqbal Brohi v. The State (1998 PCr.LJ 2066), Abdul Kareem v. The State (2000 MLD 791), Ghazanfarullah Khan Pathan v. The State (2012 PCr.LJ 1613), Ameer Hamza v. The State (2007 YLR 2883), Javaid-ur-Rahman v. The State (2010 SCMR 1744), The State v. Aijaz alias Fauji Lashari (2013 PCr.LJ 1331), Sain Rakhio v. The State (2001 YLR 859), Essa Khan v. The State (2001 MLD 971), Saleh Muhammad v. The State (1983 SCMR 341), Liaquat Khan v. The State (2012 YLR 1107) and Akhtar Abbas v. The State (PLD 1982 SC 424).
5. On the other hand, Mr. Shahazado Saleem, learned APG, while opposing the bail plea of the applicant/accused, has adopted the arguments of the learned counsel for the complainant. He has mainly argued that the learned trial Court and the prosecution cannot be held entirely responsible for the delay of trial of the applicant/accused and the applicant/accused is also partly responsible for delay in the trial and he is not entitled for the concession of bail at this stage when the prosecution is going to examine its witnesses and if the applicant/accused is released on bail he will influence the prosecution witnesses and can have an adverse effect on the evidence, as the applicant/accused is a habitual criminal offender 4nd many F.I.Rs, have been lodged against him in different Police Stations of City and he is dangerous, desperate and hardened.
6. I have heard the learned counsel for the respective parties and perused the entire material and the case-law available on record.
7. Prima facie, it appears from the record that the present applicant/accused along with his three companions entered into the house of the complainant and the complainant and his wife and two daughters were locked up in two different bathrooms while the son of the complainant was made hostage. The entire evidence of the prosecution witnesses and the contents of the F.I.R. Reveal that there was no resistance from the side of the complainant and all four culprits were busy in robbing the valuables from the house of the complainant for about two hours and when the culprits left the house, the inmates were released by the area people and the police and the complainant found his son Danish dead. The only thing, which does not appeal to a prudent mind, as to why and under what circumstances, the culprits had killed the son of the complainant in spite of the fact that the deceased Danish son of the complainant, was tied by his hands and feet, and he was not in a position to retaliate before four culprits having deadly weapons. What were the circumstances, which compelled the accused persons to kill Danish son of the complainant. This indicates that the present applicant/accused, including his three companions, appear to be hardened, desperate and dangerous persons.
8. Since bail has been sought by the applicant/accused on the ground of statutory delay, therefore, it would be appropriate to reproduce the Proviso to section 497, Cr.P.C., which was added through Act VIII of 2011 dated 20-4-2011, whereby amendment was brought 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) ...................................................
(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. Perusal of the case diaries of the learned trial Court, reveals that on 1-10-2010 interim challan was submitted. On 12-10-2010; 20-10-2010, 2-11-2010, 12-11-2010, 26-11-2010, the processes regarding absconding accused persons were being issued. On 31-12-2010 charge was framed and the case was adjourned for evidence. On 22-1-2011, 9-2-2011, 1-3-2011, 12-3-2011, 26-5-2011, 11-6-2011, 20-9- 2011, 6-3-2012, 29-11-2012, 20-7-2013, 12-10-2013, 31-10-2013,either learned counsel for the applicant/accused remained absent or moved application for adjournment. On 18-7-2011, 2-8-2011, 13-8-2011, 28-11-2011, 26-3-2012, 10-4-2012, 7-7-2012, 3-11-2012, 13-12-2012, 22-6-2013, due to strike the case could not be proceeded by the learned trial Court. On 22-8-2011, 17-12-2011, 19-4-2014, the case could not be proceeded as the Presiding Officer was on leave. On each and every date of hearing, applicant/accused was being produced in custody except one or two dates of hearing.
10. It is well settled principle of law that 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 acting 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 4rd Proviso to section 497, Cr.P.C. And in this regard, the Court has to look into the acts of the accused, as the 3rd Proviso to section 497, Cr.P.C. Is controlled by 3rd Proviso to section 497, Cr.P.C.
11. The case law cited by the learned counsel for the applicant/accused are of no avail and help to him as the facts and circumstances of the cited cases are altogether different and distinguishable from the facts and circumstances of the present case. The manner, in which the 21 years old son of the complainant was murdered in cold blood, shows the desperation and hardness of the applicant/accused.
12. In view of the above detailed discussion, I am of the considered opinion that the case of the applicant/accused is also covered by 4th Proviso to section 497, Cr.P.C., which disentitles him to grant of bail even on the ground of delay. Resultantly, bail application is dismissed.
13. The learned trial Court is directed to proceed with the main case expeditiously and examine remaining prosecution witnesses as soon as possible preferably within a period of three months from the date of receipt of this order and submit its progress report before the MIT of this Court on fortnightly basis.