SYED MUHAMMAD FAROOQ SHAH, J.---The applicant, Muhammad Iqbal, facing trial in F.I.R. No, 121 of 2012, under section 324/34, P.P.C., registered with Police Station Aram Bagh Karachi, seeks bail from this Court after dismissal of his earlier bail application by the learned 1st Additional Sessions Judge, Karachi-South, vide order dated 31-5-2014. Bail has been sought on statutory ground as the applicant is in custody since 28-5-2012 and the case has not been concluded since after passing about 25 months. It is averred that the case falls under proviso iii(a) of section 497(1), Cr.P.C.
Certified copies of the diary sheets front 23-5-2012 to 31-5-2014 have also been annexed with the memo. Of bail application.
2. Succinctly, the prosecution story as unfolded in the FIR reveals that the statement of injured Muhammad Usman Lal was incorporated under section 154, Cr.P.C. And he was referred to hospital.
In his statement the injured/complainant stated that on the fateful day his brother Muhammad Yousuf, Iqbal son of Haji Yasin and Chand Mamu came and had some talks with Gullu son of Ismail and suddenly started firing and thereafter Iqbal (applicant) from a T.T. Pistol opened fire upon him and upon his sons Rehman and Rizwan, due to which he and his both sons become injured due to indiscriminate firing. He lodged the report against applicant Iqbal son of Haji Yasin, Chand son of Ismail and Gullu son of Ismail, who while making firing with T.T, Pistol, caused injuries to them with intention to kill. On completion of usual investigation, the applicant along with co-accused were charge sheeted on commencement of the trial, charge was framed, two prosecution witnesses were examined and now the case is subjudice for trial.
3. Arguments heard . Record perused.
4. Mr. Khawaja Naveed Ahmed, Advocate representing the applicant at the outset submitted that the bail application has been filed on the sole ground of statutory delay of about 29 mouths (till date) as the applicant is behind the bars and that the conclusion of trial shall take considerable time. He has further contended that the earlier bail application filed before this Court (Criminal Bail Application No,818 of 2012) was disposed of vide order dated 15-10-2012, with directions to the trial court to conclude the evidence within two months period but since after passing sufficient time, the evidence could not be concluded by the prosecution.
5. Conversely, the learned counsel for the complainant vehemently opposes grant of bail to the applicant and submitted that remaining two accused are already on bail and the specific role in commission of heinous offence was assigned to the present applicant, who is creating hurdles in smooth proceedings of the case before the trial Court. Therefore, is not entitled for bail. It is next contended that the delay in trial was occurred due to absence of defence counsel, change of defence counsel and non-production of applicant from jail and perusal of the diary sheet shows that there are as many as ten adjournments sought by the applicant's side when the eye- witnesses/injured were regularly attending the court for recording their evidence.
6. In spite of notice to the Prosecutor-General, Sindh, none has shown appearance from the Prosecutor General's office without any intimation.
7. From perusal of record, it appears that directions contained in earlier order dated 15-10-2012 passed in Criminal Bail Application No,181 of 2012 by this court have not been complied by the trial Court with certain reasons and grounds, forwarded to this Court, time and again. It need not to emphasize that section 344 of Criminal Procedure Code regulates adjournments, which provides that:- "If from the absence of a witness or any other reasonable cause, it becomes necessary or advisable to postpone the commencement of or adjourn any inquiry or trial, the Court may, if it thinks fit, by order in writing, stating the reasons therefor from time to time, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may a warrant remand the accused if in custody." Bare reading of mentioned provision provides that adjournment should be granted only when Court finds it with reasons to be recorded. It is expected that if the aforesaid provision is followed, it will help in curbing delays in disposal of cases. Of course, frequent adjournments mostly sought on flimsy grounds contribute to hardship, inconvenience and expenses to parties and the witnesses as the witnesses come to assist the Court to dispense justice, who sacrifices their times feels inconvenience rather frustration and unhappiness if the case adjourn, as they are required to come to the Court repeatedly, which amounts to provide an opportunity to the opposite party to threaten them not to depose truth.
Unnecessary adjournments creating hurdles in judicial system may shake confidence of concerned, which should be avoided at all costs. Undoubtedly, unnecessary adjournments give scope for grievance as the accused persons get time to win over the witnesses. Indeed, the trial judge is the kingpin in the hierarchical system of administration of justice and must have strength to put to an end to injustice while performing his sacred duties. The judicial wisdom and dignity, intellectual integrity, knowledge, judicial restraint and functions are few aspects through which the Court may function successfully by inspiring confidence of all. In such aspect congenial atmosphere in Court may be maintained in graceful and dignified manner so that indulgence to one party at the expense of justice may not be caused.
8. By considering the arguments advanced by the learned counsel for the respective parties and on perusal of the record, it appears that after framing of the charge on 7-8-2011 two prosecution witnesses have been examined and remaining prosecution witnesses could not be examined due to frequent adjournments sought by the applicant's side i,e, on 12-9-2012, 27-9-2012, 1-11-2012, 15-11- 2012, 8-2-2013, 14-2-2013, 1-3-2013, 27-3-2013, 16-5-2013, 2-7-2013, 24-7-2013, 2-8-2013, 16-8-2013, 29-8-2013, 12-9-2013, 25-9-2013, 24-10-2013, 17-12-2013 etc. It needs not to iterate that on all the above mentioned dates of hearing the prosecution witnesses were found present and were bound down for next date of hearing, which fact alone is sufficient to show that instead to facilitate prosecution witnesses, they were put under pressure by the defence side. Record further reveals that on almost every date of hearing the prosecution witnesses were regularly attending the trial Court for recording their deposition but it could not be recorded due to one or the other reasons which include strike of Members of the Bar, non-production of custody or due to absence of complainant counsel etc., which shows that instead to facilitate the prosecution witnesses they were put in agony of lengthy proceedings of the trial. Even some shortfall has also been transpired on the part of the concerned Judicial Officer of the court, who was legally bound and supposed to record the deposition of prosecution witnesses as early as possible; more particularly, the directions were issued by this Court while deciding the earlier bail application. Sufficient material available on the record shows that finalization of the trial could not be taken place mainly on account of the delay caused by the defence as adjournments were sought in presence of the prosecution witnesses, therefore, the delay in the trial is mainly assigned on the part of defence, which is clear from the diary sheets of B the trial Court.
9. Keeping in view the afore-mentioned facts and circumstances of the case in hand, the bail application is dismissed, However, the learned trial Court is directed to expedite and finalize the trial within a period of thirty days after receipt of this order. It has been observed that the trial court is not found capable to conduct the proceedings of the case, therefore, the learned Sessions Judge, Karachi-South to withdraw and proceed with the matter himself (hearing Sessions Case No, 359 of 2012 pending in the court of 1st Additional Sessions Judge Karachi-South) for its disposal in accordance with law, under intimation to this Court through MIT-II.
10. Copy of this order be also forwarded to the learned Sessions Judge Karachi-South for making compliance.