' MUHAMMAD IQBAL KALHORO, J.---This order proposes to dispose of Cr.B.A.No,616/2013 filed by accused Irshad and Imtiaz in Crime No,135/2011 of Police Station, Tando Masti Khan under sections 302, 148, 149, P.P.C.
2. The brief resume of the facts given in the FIR is that complainant Sher Muhammad lodged report on 12-9-2011 at 1510 hours to the effect that he has got murderous feud with one Arshad on 12-9- 2011 the complainant was present at the Gate of Wassan Cotton Factory along with his brothers Lal Khan and Muhammad Nawaz after doing labour in the said factory where one Sikandar Ali arrived on motorcycle to pick his brother Dhani Bux. In their presence his brother Dhani Bux working in Mehran University Khairpur got off from the bus of University. Meanwhile at about 2.30 hours 5 persons on two motorcycles arrived, who were identified to be 1. Irshad,
2. Imtiaz,
3. Altaf alias Nandho all sons of Rasool Bux Thebo,
4. Akbar son of Kareem Dino Thebo and 5. Nadeem son of Hoth Thebo, no sooner they came than they took out pistols from the folds of their Shalwars and within their sight accused Irshad fired from his pistol at Dhani bux at his temple, and accused Imtiaz fired from his pistol at his left arm and accused Altaf alias Nandho fired at him from his pistol on his buttock and right leg, as a result of which the brother of the complainant fell down raising cries. Then accused Akber, Nadeem Thebo and others pronounced that they have taken their revenge. Thereafter all the accused went off on the same motorcycles, towards Gambat.
Complainant party then checked brother Dhani Bux who had died due to above stated fire arm injuries. Consequent whereupon the complainant leaving behind above mentioned P.Ws. On the dead body of his brother, appeared at Police Station and lodged the FIR.
3. The counsel for the applicants/ accused in his arguments only focused on the statutory ground.
He stated that the trial of the accused, has not been completed within period of 2 years after their arrest on 14-9-2011. According to him the concession provided under the 3rd and 4th Proviso of Section 497, Cr.P.C., is very much attracted in favour of the accused, who have earned a valuable right to be released on bail as the delay in conclusion of the trial is not attributable to the applicants/accused. He has emphatically argued that the Court while deciding the bail application of the accused moved on statutory ground has to minutely examine the record of trial pertaining to the period of 2 years to determine whether the delay in conclusion of trial has been occasioned by any act or omission played out by the accused. According to him, the applicants/ accused have never moved any adjournment applications in the present case and are continuously in jail since their arrest without any progress in the matter. He further argued that he had also moved the bail application on behalf of the applicants/accused before the trial Court on the same ground wherein reports were called regarding antecedents of the accused from the police authorities and about any previous conviction 'from the jail authorities. According to him, in those reports, nothing negative came against the accused. The learned counsel also referred to the case diaries which he has submitted in the instant application with effect from 21-7-2012 to 17-9-2013 to emphasize that in fact the prosecution is to blame for non-'progress in the trial instead of the accused. According to him on many dates, though the accused were produced from jail authorities, but due to absence of complainant and P.Ws. No proceedings could be recorded. He states that the earlier Bail Application No,324/2012 filed by the accused was dismissed on merits by this Court vide order 24-10-2012; however directions were issued to the trial Court to examine the material witnesses within a period of 2 months, which imperatives since have not been complied with as so far no witness has been examined by the Court. According to him the accused, on that count, are also entitled to the grant of bail. He further argued that it is the right of the accused that they shall be provided expeditious trial which is also dictate of the law and in case of failure, as has happened in the present case, they may be released on bail. He has relied upon the, following case-
(1) 2003 YLR 3166
(2) PLD 2012 Sindh 147.
(3) 2010 SCMR 354.
(4) 2012 YLR 1496.
(5) PLD 2002 SC 18.
(6) 2012 PCr.LJ 1588.
4. As against it, the learned counsel for the complainant has argued that by contrivance, the accused have managed to delay the progress of the trial, as initially Mr. Abdul Haq Odho Advocate had filed the Vakalatnama on behalf of the present applicants/accused in the trial Court as well as for accused namely Nadeem who stands granted bail by the trial Court and at later stage present defense counsel filed power on behalf of the present applicants/accused, however Mr.Odho has not yet witnarawn his power. According to him, the learned counsel has been moving adjournment applications purportedly on behalf of accused Nadeem without being objected to by the present applicants which, according to him, denotes connivance between all the accused to cause delay in the trial with the sole purpose of ensuring the lapse of two years without conclusion of trial so that the accused in jail could claim/avail the concession provided under the statutory ground. The learned counsel further submitted that the counsel- for the accused has not deliberately submitted the case diary after 17-9-2013, inasmuch as the complainant and his P.Ws. Owing to a false FIR bearing Cr.No,117/2013 of Police Station Gambat under sections 395, 337H2, P.P.C. Lodged against them by the relative of accused party were trying from pillar to post to get the bail in that case and only after they were granted bail in the month of September, 2013, they appeared before the trial Court to record their evidence and since then on each and every date of hearing they are present but the accused are causing hindrance in the progress of the trial. He also proposed a suggestion that if the learned defense counsel so wishes and agrees, he would ensure the presence of all the private witnesses including complainant on the next date of hearing to record their evidence, as the charge in the matter is "already framed. (Such suggestion was, however, not accepted by the learned defense counsel). He has lastly relied upon the following case-law:-- 2014 PCr.LJ 437. 2013 PCr.LJ 1331. 2006 PCr.LJ 1256. 2013 YLR 1318. 2012 YLR 2432.
5. The learned APG appearing on behalf of the State has adopted the same arguments rendered by complainant's counsel and further pointed out that in all, the complainant and his witnesses have remained present on 23 dates but the defense counsel did not examine them. He has prayed for rejection of the application with the request for issuance of directions to the trial Court to expedite the matter.
6. I have heard the learned counsel for respective parties and perused the record.
7. The bail application has been filed solely on statutory ground under Provisos of Section 497, Cr.P.C. By virtue of amendment made under the said section in the year, 2011 through Code of Criminal Procedure (Amendment) Act 2011, the said provisos were reintroduced, resultantly the Courts have been empowered to release the accused on bail where the delay in the trial has not been occasioned by any act or omission on the part of accused or any person acting on his behalf.
"Any person" acting on his behalf includes but is not limited to be his Advocate. The period of two years is associated only with sub-clause (b) to third proviso and it is not reflected in the main third proviso i,e, delay in the trial. Meaning thereby the accused in order to qualify to file bail application under the said proviso has to show that he has been detained for such offence for continuous period exceeding two years and once he qualifies such period he has to further prove that the delay in the trial was' not caused by any of his act or omission. The remedy under the law has been provided mainly to alleviate the misery, the despondency and the agony, which naturally follows, when the trial of the accused, who is languishing in the jail is not making any progress despite his efforts showing his bona fide and interest in proceedings. However, if it is found that the accused, himself is instrumental for Causing delay in the progress of trial directly or indirectly then such remedy would not be available to him.
8. In the present case the applicants have failed to show the delay in the trial has not been occasioned by them. There appears a design by the applicants to thwart progress in the trial. Their counsel who besides them is also representing co-accused Nadeem has moved adjournment applications (two of which are annexed with this application), which tend to denote as if the said counsel is representing only co-accused Nadeem on whose behalf the same purport to have been filed, whereas the impugned order connotes that until last time the said counsel had not withdrawn his power filed for applicants. The omission to mention the applicants and specifically naming co- accused Nadeem in said applications appears to be deliberate and meant to buy time for the present accused under statutory ground. The discreet consent of the applicants to letting the trial linger on without progress is obvious from the fact of them never objecting to moving of such applications despite being in jail. By employing different modus operandi, the accused ensure the trial in their case is delayed, so that they may come out of jail on the expiry of statutory period.
When such scheme is apparent to the court, it would not allow release of the accused on bail on statutory ground. To seek the concession envisaged under the said provisos to section 497, Cr.P.C, the B accused has to show his bona fide and efforts in proceeding with the trial. The mathematical computation of 2 years period would militate against the idea of introducing above provisions in the law, which are basically based to check the continuous confinement of the accused in jail without trial by dint of any shenanigan on the part of prosecution. The anxiety of applicants or their only interest in getting release on bail came to be further evident by the refusal of learned defense counsel to accede to suggestion made by counsel for complainant to examine all the eyewitnesses on the next date of hearing. The learned counsel could not dispute attendance of witnesses in the court on each every date of hearing since October, 2013.
9. Pursuant to the order by this court, the trial court had sent report in the present case which, since is worth reading, is reproduced here:- "The comments called by the honourable High Court in the subject noted Cr. Bail Application are submitted as under:-- ' That on behalf of Mr.Abdul Haq odho Advocate, whose Vakalatnama is available on record, on behalf of the applicants adjournment applications were moved on different dates as mentioned below.
(1) 7-9-2013,
(2) 12-10-2013,
(3) 2-11-2013,
(4) 23-11-2013,
(5) 7-12-2013.
' In the above noted sessions case, the amended charge was framed against the accused on 24- 8-2013. After framing of amended charge, on each and every date of hearing, complainant Sher Muhammad, P.Ws. Sikandar and Lal Khan appeared before this Court for record of evidence but case was adjourned on the adjournment application filed by advocate for applicants or advocate for complainant. Now, the case is fixed on 28-12-2013 for recording of evidence and above named complainant and P.Ws. Are bound down".
' The report ibid shows the amended charge was framed on 24-8-2013, since then the complainant and P.Ws. Are present on each and every date of hearing but to no avail, which does not auger well for either party. When the witnesses are in attendance, the courts shall not grant regular adjournments to either party on any ground, excepting, when it is absolutely and extremely necessary and unavoidable.
10. The Honourable Supreme Court in the case of Abdul Rashid v. The State reported in 1998 SCMR 897 has been pleased to observe as under:-- "Factually, if the witnesses are in attendance and matter is ripe for recording evidence, but defence does not proceed with the case, it May seriously affect the prosecution because on the next date, possibly, for some or the other reason, witnesses who had in fact appeared may not attend.
Therefore, if effective hearing is got postponed by the accused or his counsel, then they are bound to face entire risk and such period which may be consumed in Procuring presence and examination of those witnesses who earlier appeared in the Court when adjournment was sought on behalf of accused would be important factor for considering question, of bail merely on statutory ground under third proviso to section 497, Cr .P.0 .
' We have considered the ratio decidendi in cases Amir v. The State (1991 Pakistan Criminal Law Journal 534), Qaiser Mehmood v. The State (1996 MLD Lahore 157), M.Siddiq v The State (1996 Criminal Cases 1713), Liaquat Ali v. State (PLD 1997 Karachi 156). In our opinion the observations in the afore-quoted judgments holding 'that adjournments sought by the counsel for the accused or accommodating granted to him by the Court should not affect the right of accused for availing'benefit of third provision to section 497, is not correct. In the above cases exception contained in the third proviso has been completely ignored and misinterpreted. We seriously apprehend that if above construction of law is allowed to hold field, there is greater likelihood of its being misused by adopting different devices and real object of incorporating third proviso (supra) would be frustrated. It is quite apparent that if 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, then the right to release under third proviso cannot be availed".
11. The Honourable Supreme Court in a case of Liaquat Hussain v. Federation of Pakistan reported in PLD 1999 SC 504 at Paragraph 54 while treating the statutory ground has ably observed:-- "Before concluding the above discussion, it will not be out of context to point out that third proviso to section 497 of the Criminal Procedure. Code is also substantially contributing towards the delay in the disposal of criminal cases as it entitles an accused person of an offence not punishable with death to obtain bail on the expiry of one year from the date of his arrest, and in case of an offence punishable with death on the expiry of two years period from the date of his arrest. Some of the accused persons by their design to ensure that the trials of their cases are delayed, so that they may come out of jails on the expiry of the above statutory periods. In my humble view, the above provision has been misused and the same needs to be deleted. I may also observe that even before the incorporation of the above proviso, it was open to a court to grant bail in a fit case on the ground of inordinate delay in the trial of a case, but no accused persons was entitled to claim bail as a matter of right on the expiry of certain period".
12. Due consideration has been given to the contention raised by the learned counsel that on account of non-compliance of directions contained in the order dated 24-10-2012 passed by this Court regarding examination of the material witnesses viz complainant and medical officer, which could not be met by the trial Court, the applicants are entitled to the concession of bail. Such proposition suggested by the learned defense counsel is, entirely alien to law as the directions contained in the orders of superiors Court are meant to expedite the proceedings against the accused, the same cannot be treated as an accrual of fresh ground in favour of them in case of noncompliance of such directions. Reliance can be placed on 2003 MLD 79, 2004 PCr.LJ 713 and SBLR 2013 Sindh 869.
13. I have the honor of perusing the case-law reported in 2012 SCMR 354 relied upon by the learned defense counsel. With due respect in the above, case the bail was granted to the accused on 28- 9-2011 by the ' Honourable Supreme Court on the ground that proceedings, despite charge framed on 29-7-2008 and amended charge on 13-6-2009, had not been concluded nor there was any reasonable possibility of the conclusion of such trial in near future. In the present case, however, as has been discussed above, the complainant and witnesses remain present before the trial Court with the aim of getting their evidence recorded and as per suggestion of the counsel their evidence could be completed within the short span of one month. The circumstances, therefore, obtaining in the present case are quite different than the ones having been dilated upon by the Honourable Supreme Court. I have also gone through the remaining case-laws relied upon by the learned defense counsel,, which, being distinguishable are not applicable to the peculiar facts and circumstances attending in the present case.
14. Since the instant application has been moved only on the statutory ground, I need not harp on the merits of the case.
15. The above discussion has firmly led me to conclude that the applicants/ accused have not be able to make out their case for bail on the statutory ground. Consequent whereupon I dismiss the instant bail application. Nevertheless the trial Court, is directed to take efforts to ensure the expeditious progress in the trial and shall not allow any adjournment to either party except on cogent grounds.