SHAHID HAMEED DAR, J.---Tahir Mehmood (petitioner) seeks bail after arrest in case-F.I.R.
No.1084/2010, dated 27-10-2010, registered under sections 302, 394, 392, 411, P.P.C. Read with section 13 of Pakistan Arms Ordinance (XX) 1965, at Police Station City-B-Division, Sheikhupura.
2. After dismissal of his earlier post arrest bail application (Criminal Miscellaneous No. 6510-B of 2011) vide order dated 23-6-2011, the petitioner approached the Hon'ble Supreme Court of Pakistan for seeking bail through Criminal Petition No.547-L of 2011, which again met the same fate, as learned counsel for the petitioner preferred to withdraw it after having argued it at some length. He, now, pleads statutory ground of delay in conclusion of the trial, which, according to his learned counsel, has not concluded as yet despite more than two years' incarceration of the petitioner, since 27-1-2011.
3. Learned counsel for the petitioner submits that the earlier bail declining orders may not be deemed injurious to the bail plea of the accused/petitioner for the sole reason that he pressed for bail on the statutory ground of delay in conclusion of the trial which envisages and confers a compulsory right upon the petitioner to seek bail; the petitioner or any other person acting on his behalf did not occasion any delay in conclusion of the trial and an accumulative look at the proceedings of the trial would suggest that it was the prosecution, which, through its various tactics equally contributed towards perpetuation of proceedings of the trial which created a favourable circumstance for the accused/ petitioner to be granted bail; out of fifty five (55) adjournments, by the learned trial Court till today, the petitioner sought seventeen (17), of course, not for a vexatious purpose but for valid reasons which do not infringe his case in any manner; the complainant and his co-witnesses departed from their previous stance, they took at the investigation stage, during their examination as P.Ws. At trial, which gives rise to a fresh ground, as acknowledged by law; the petitioner does not have any previous criminal antecedents therefore, he may not be considered a desperate or hardened criminal. Relies upon cases titled Liaqat and another v. The State (1995 SCMR 1819), Nazir Hussain v. Ziaul Haq and others (1983 SCMR 72), Haji Javed Ahmad and another v. The State (PLD 1997 Karachi 156), Muhammad Sadiq and 2 others v.
State (1996 PCr.LJ 1440), Ali Hassan alias Mithu v. The State (1997 PCr.LJ 411), Abdul Razak Zangejo v. The State (PLD 2012 Sindh 218) and Shaukat Ali v. Ghulam Abbas and others (1998 SCMR 228).
4. On the other hand, learned Additional Prosecutor-General Punjab assisted by learned counsel for the complainant opposes the contention that the accused/petitioner actively contributed towards delay in conclusion of the trial and on every such occasion when prosecution evidence was available, he got proceedings adjourned on one pretext or the other; the mode of occurrence and overall picture of the prosecution case, easily paints the petitioner as a hardened and desperate criminal; no such mathematical equation can be drawn as asked by the other side nor proceedings of a trial can be messed up for doing favour to the accused/petitioner; it is the petitioner alone who can be saddled with the liability as enshrined in Exceptional Clause of the 5th Proviso to section 497(1), Cr.P.C.
5. After hearing learned counsel for the parties and perusing the record, an immediate impression can be gathered that the accused petitioner and his co-accused showed delinquency at trial and sought adjournments one after the other, in fact on seventeen (17) occasions, when prosecution witnesses were in attendance for their examination by the learned trial Court. There can be no contrary view to the onerousness of the complainant of a criminal case, who, has to take rigours in not only preserving his witnesses from lurking fears of the other side but also ensuring their presence and examination as per the case built by the prosecution, before the learned trial Court. It is a matter of common observance that the adjournments sought by the accused/defence, in presence of the prosecution witnesses, who, unluckily leave without being examined due to non- cooperative and evasive conduct of the accused, certainly results in their demoralization and discouragement. An adjournment earned by the defence in a particular situation, may cause wastage of a dozen ensuing dates of hearing which perpetuate proceedings of the trial and for such a circumstance, the accused cannot claim innocence or being not at fault. It is not the requirement of the law that the adjournments sought by the defence may be compared with the adjournments obtained, by the other side, so as to draw a mathematical equation as to who outnumbers whom, nor digits can be juggled with for the said purpose. The language of the 5th and 6th Provisos to section 497(1), Cr.P.C. Is precise and clear which does not permit such a mind- itching exercise, as suggested by the learned counsel, to extract favours for a particular party. Let us have the definitions of the said provisos reproduced here 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 on 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."
Learned counsel for the petitioner repeatedly desired and in fact did reopen the merits of the case, wherefore he was reminded by the Court of his curtailments, especially after dismissal of earlier bail application (Criminal Miscellaneous No.6510-B of 2011) of the accused on merits by this Court vide order dated 23-6-2011 and dismissal of another one, (Criminal Petition. No.547-L of 2011) by the Hon'ble Supreme Court of Pakistan after it had been argued at some length. So far as, story of F.I.R.
Is concerned it can be validly gone into while adjudicating this bail-application, under 5th proviso to section 497(1), Cr.P.C., with a view to formulate an opinion, as to whether or not, the mode of occurrence hinted at the desperate/hardened character or disposition of the accused. It is discernable from the record that the petitioner was implicated by the complainant and other witnesses with the contention, they adopted at the time of his test identification on 1-2-2011 that he not only forcibly snatched mobile-phones from Muhammad Ratiq and Abdul Khalil but also tired at Amanullah (deceased) which severed his life-line. A person committing an offence of dacoity- cum-murder, like the petitioner is pitted against, can definitely be held a desperate or hardened character which brings his case within the mischief of the Exceptional Clause of the 5th Proviso to section 497(1), Cr.P.C. The argument of learned counsel for the petitioner that the prosecution witnesses improved upon their previous statements while rendering evidence before the trial Court appears to be a submission-in-vacuum, as the learned counsel has failed to produce any supporting material in this regard. Even otherwise, it would be up to the learned trial Court to adjudge, whether or not any such improvement had been made by the witnesses in their testimonies and if yes, its effect in the long run. Not a valid ground to be considered at this stage in a bail petition. The judgments relied upon by the learned counsel, being distinguishable on facts hardly lend a sense of fortification to the submissions made on behalf of the petitioner.
6. Therefore, 1 am not inclined to accept this petition, which is accordingly dismissed.
7. Before parting with this order, the learned trial Court is directed to speed up the proceedings of the trial and conclude it within six months, excluding the summer-vacation, from the date of communication of this order. It is desired that the learned trial court would record receipt of the instant order in the order sheet and ensure compliance thereof in letter and spirit, may it be a day- to- day or twicea-week affair.
A copy of this order be sent to the learned trial Court for information and compliance through some swift means, preferably within six (6) days from today.