1. DETAILED ORDER CH. ABDUL AZIZ, J.---This is an application for post arrest bail on behalf of Muhammad Khalid in case FIR No .90/2014 , dated 27. 02.2014 , under Sections 302, 109, 120-B, 118, 148, 149, P.P.C., registered with Police Station, Noshehran Virkan, District Gujranwala.
2. 2.Precisely, the allegation against the accused/petitioner is that he in furtherance of common object with his co-accused while armed with deadly weapons, launched a murderous assault on Ghulam Murtaza (deceased) and murdered him by causing injuries on his legs.
3. 3.The petitioner previously applied for bail after arrest on merits, which came up for hearing before this Court on 23.07.2015 and was dismissed through an order passed in Crl. Misc. No. 6533-B/ 2015.
4. This is the second application for bail after arrest, moved on fresh ground of non-conclusion of trial even after the elapse of a period of two years and the filing of a private complaint by the widow of the deceased, against the complainant and the two eye-witnesses nominated in FIR.
4. Learned counsel for the petitioner submits that the case has taken a turn as the widow of the deceased has filed a private complaint against the complainant namely Ghulam Mustafa and the two other witnesses namely Muhammad Khalil and Allah Ditta; that despite the fact the petitioner is behind bars for the last about 30-months but the trial has not yet concluded; that a valuable right for the grant of bail has accrued to the petitioner due to the non-conclusion of trial; that the trial is not delayed due to any act or omission of the petitioner and that the petitioner is neither dangerous nor desperate or previously convicted offender, hence is entitled to concession of bail.
5. 5.Learned Deputy District Public Prosecutor assisted by the learned counsel for the complainant has vehemently opposed the grant of bail and argued that the filing of the private complaint by the widow is no fresh ground, hence the instant bail petition is not maintainable; that the delay in conclusion of trial is caused due to the arrest of co-accused in some other case and that a direction for the expeditious disposal of the case will be an appropriate order in this case.
6. 6.I have heard the arguments of the learned counsel for the parties and have perused the record.
7. 7.The instant case was registered on 27.02.2014, whereas the private complaint, which according to the learned counsel for the petitioner is a fresh ground, was filed on 06.05.2016. This private complaint is filed by Sobia, who is widow of Ghulam Murtaza (deceased) against Ghulam Mustafa (complainant) Muhammad Khalil and Allah Ditta (the two witnesses nominated in FIR). Even in the said private complaint, she has not claimed to have witnessed the occurrence and instead her blame against the accused of the private complaint is based on the evidence of extra judicial confession only. Without commenting upon the nature of acquisition contained in private complaint, this Court is of the view that due to the delay in filing the complaint and the nature of evidence, this complaint, in no way provides a fresh ground to the petitioner.
8. 8.The entitlement of the petitioner to the concession of bail, based on the 3rd proviso of section 497, Cr.P.0 is properly thrashed out by this Court from the record. The petitioner was arrested in this case on 18.05.2014, and the report under section 173., Cr.P.C. was submitted on 12.09.2014. In pursuance of submission of report under section 173, Cr.P.C. the copies under section 265-C, Cr.P.C. were distributed on 20.05.2015 and reluctantly charge was framed on 06.07.2015. The perusal of the record reveals that on most of the dates, the prosecution witnesses were found absent. There are only two adjournments, which can purely be attributed to the defence, one being of 04.11.2015 and the other one of 11.04.2016. Both the interim orders are being reproduced below:- (i)."04.11.2015. Accused Khalid in custody.
9. Accused Zafar Iqbal, Nazim Hussain, Imtiaz and Khan Muhammad on bail.
10. Learned Deputy District Public Prosecutor for the State.
11. PWs are present but accused stated that they have not engaged their counsel and requested for an adjournment. Present PWs are bound down for the next date. To come up on 17.11.2015."
12. (ii)."11.04.2016. Accused Khalid in police custody.
13. Accused Zafar Iqbal, Nazim Hussain, Imtiaz and Khan Muhammad on bail.
14. Complainant in person with PW Allah Ditta.
15. Learned ADPP on behalf of State.
16. Present PW is bound down. None of the remaining PWs are present. Let non-bailable warrant of arrest be issued in the name of SHO concerned for the production of remaining PWs on 25.04.2016."
17. On the earlier date, the petitioner sought an adjournment to engage a counsel. Such a right is provided to him under section 340, Cr.P.0 as well as under Article 10 of the Constitution of Islamic Republic of Pakistan, 1973. As regards, the second date, it is observed that the set of the three eye- witnesses namely Ghulam Mustafa, Muhammad Khalil and Allah Ditta was not complete, hence, these two dates cannot be attributed to have contributed towards the delay, so as to render the petitioner disentitled from the concession of bail on the statutory ground. The perusal of the order sheet further reveals that on many dates, due to the absence of PWs, the learned trial court was forced to have recourse towards adopting coercive measures to procure their attendance. In this respect reference can be made to the order sheet of 10.12.2015, 05.01.2016, 18.01.2016, 17.09.2016, 08.10.2016, 30.07.2016, 03.09.2016, 14.03.2016, 28.03.2016. Admittedly, till date not a single prosecution witness has been examined whereas according to the calendar of witnesses, the proposed prosecution evidence comprises upon 19 witnesses.
9. In order to decide the question of entitlement of the petitioner, to be released on bail on account of statutory delay, it would be in fitness of things to peep through the legal archive, so far as it relates to grant of bail on account of delay. The provision of 3rd proviso was added in section 497, Cr.P.C. through Ordinance No. LXXI of 1979. An amendment was brought about in section 497, Cr.P.C. and a proviso was added, therein to the following effect:-- "Provided further that the Court shall, except where it is of 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.
18. (a)Who, being accused of any offence not punishable with death, has been detained for such offence for a continuous period exceeding one year 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 whose trial for such offence has not concluded."
19. Later on, in the year 1983, Section 497 Cr.P.C. underwent a further change through Ordinance No. XXXII of 1983, whereby the 4th proviso of section 497 Cr.P.0 was added therein. The: relevant portion of the said Ordinance is reproduced hereunder:- "Provided further that the provisions of the third proviso to this subsection shall not apply to a previously convicted offender or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal."
20. It is found that prior to 1979, no enabling provision was in existence in Criminal. Procedure Code, whereby a person could be released on bail on account of delay in conclusion of trial. Even then, prior to the insertion of 3rd proviso, the delay was always considered as a ground for the grant of bail. However, at that time the courts were of the view that the delay must be inordinate or scandalous in nature. In this respect, reference can be made to the judgment reported as Ghulam Jillani v. SHO Gulberg (PLD 1975 Lahore 210). The observation of this Court is being reproduced hereunder:-- "Similarly, on the question of bail after arrest, after some amount of uncertainty, the law is now well settled that inordinate delay is a good ground for bail even in those cases whick otherwise fall within the prohibition contained in subsection (1) of section 497, Cr.P.C. Thus, the ground of delay can be taken as another relevant analogy for the present discussion. It has been held that inordinate delay amounting to abuse of process of law furnishes good ground for bail."
21. In another case reported as Ahrar Muhammad v. The State" (PLD 1974 Supreme Court 224), the Hon'ble Supreme Court of Pakistan observed as under-- "It is true that the view of the Supreme Court has consistently been that mere delay by itself is not a sufficient ground for the granting of bail; but, at the same time it cannot be said that inordinate or unjustified delay in the prosecution of a case amounting to an abuse of process of law can never be taken into account as relevant ground for the granting of bail. If the delay is so inordinate or so scandalous or so shocking as to amount clearly to an abuse of the process of law there can be no reason either in principle of law as to why it cannot be treated as a sufficient ground for the granting of bail. If such delay can be sufficient for quashing a criminal proceeding then it can also be an equally good ground for the granting of bail."
22. In the case of Sher Zaman v. Muhammad Azad (1978 SCM R 248), while dealing with an application for the cancellation of bail granted to him by the Hon'ble Lahore High Court on account of delay in conclusion of trial, following observation was made by Hon'ble Supreme Court of Pakistan:- "The discretion exercised by the learned Single Judge in the High Court or releasing the accused on bail cannot be said to be illegal or perverse in view of the authority reported in PLD 1977 SC 480.
23. Under the circumstances, this petition is, therefore, dismissed."
10. This Court is also not oblivious of the fact that in the past, the provision of 3rd proviso of section 497, Cr.P.C. was misused reluctantly the Honourable Supreme Court of Pakistan observed in the judgment reported as Sh. Liaquat Hussain v. Federation of Pakistan (PLD 1999 SC 504 and page 635) as under:--
45. "Before concluding the above discussion it will not be out of context to point out that the third proviso to section 497 the Criminal Procedure Code is also substantially contributing towards the delay in the disposal of criminal cases as it entitles and accused person accused 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 ensure that the trials of their cases are delayed, so that they may come out of jails on the expiry of the above statutory period. 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 person was entitled to claim bail as a matter of right on the expiry of certain period."
24. Reluctantly, the 3rd and 4th proviso were omitted from section 497, Cr.P.C. However, in the recent past, the legislatures again inserted 3rd and 4th proviso in section 497, Cr.P.C. through the Code of Criminal Procedure (Amendment Act) VIII of 2011, w.e.f. 18.04.2011. The relevant portion of the said amendment is reproduced hereunder:-- "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 involved in terrorism."
25. The gist of the above mentioned amendment can be summarized to the effect that a male accused becomes entitled to the concession of bail in a murder case, if he remains in continuous detention for a period exceeding two years and whose trial for such offence is not concluded. In the case of a female accused, such detention is for a period of one year. The entitlement of the accused under 3rd proviso of section 497, Cr.P.C., qualifies for acceptance with the condition that such delay is not occasioned by an act or omission of the accused or any other person acting on his behalf. Moreover, the provision of 3rd proviso, is not to be read in isolation, rather are to be considered in conjunction with the provision of 4th proviso of section 497, Cr.P.C. This is envisaged in the 4th proviso that the benefit of 3rd proviso of section 497, Cr.P.C. will not be extended to a person, who is convicted in an offence punishable with death or imprisonment for life or is a hardened, desperate or dangerous criminal or a person, who is involved in an act of terrorism punishable with death or imprisonment for life.
26. 11.The expeditious disposal of the case is the right of every accused person. The prosecution is required to proceed with its case, in all fairness, without delay. No leverage can be given to the prosecution to unnecessarily prolong the trial of the case, even in the cases of capital punishment.
12. In the instant case in order to see the reasons of the non- conclusion of trial, a report was also requisitioned from the learned trial court. The perusal of the report also shows that none of the reason assigned therein, can be attributed to the petitioner or to his counsel. According to this report, the case was adjourned for some dates on account of absence of co-accused Imtiaz, who was statedly arrested in case FIR No. 904/16 under section 9(c) of Control of Narcotic Substances Act, 1997 registered at Police Station Housing Colony, Sheikhupura. The perusal of the record shows that presently Imtiaz is appearing before the Court. The delay, if any, caused by co-accused does not make the petitioner disentitled from the concession of bail arising out of 3rd proviso of section 497, Cr.P.C. An accused cannot be held hostage for the act of his co-accused. In this respect reliance can be placed on the judgment reported as Shoukat Ali v. Ghulam Abbas and others (1998 SCMR 228). Following is the relevant extract of this judgment:-- "It appears that by the time, the accused/respondents were released on bail, period of their incarceration had almost exceeded two years and admittedly their trial had not concluded till then. It has not concluded even till today. Confronted with this position, learned counsel for the petitioner sought to argue that some delay was also caused owning to the nom-appearance of the accused, who were placed in column No.2 of the challan and were summoned by the Court.
27. Learned counsel was unable to give us the exact period of delay so caused and even otherwise, the delay, if any, caused on account of non-appearance of the co-accused of the respondents could by no stretch of reasoning be attributed to the latter. Needless to observe that such delay could not be said to have been occasioned by any act or Omission of the accused/respondents or any person acting on their behalf. "
28. 13.The ground of delay, for the purposes of grant of bail prior to above referred, amendments was undoubtedly within the discretion of the Courts and such question whenever arose, was decided by the courts in accordance with the facts and circumstances and in accordance with the judicial wisdom. There was no legal provision, in any statute, to provide any guideline. The law for the grant of bail, on account of delay developed on the basis of judge made law. However, later on the legislatures intervened and the law was made more specific and certain. The amendments in the shape of 3rd and 4th provisos of section 497, Cr.P.C. were brought and guidelines were provided for the grant of bail on the account of delay in conclusion of trial. In the 3rd proviso of section 497, Cr.P.C. the word 'shall' was used by the legislatures. The word shall itself reflects the intent and desire of the legislature that if in the given circumstances the delay is not attributable to the accused and he does not hail from the specific class of persons defined in 4th proviso of section 497, Cr.P.C. then he is to be released on bail as a matter of right. This aspect was discussed by the Hon'ble Supreme Court of Pakistan in the judgment reported as Nazir Hussain v. Zia ul Hag and others (1983 SCM R 72). The para 9 of this judgment is relevant, which is reproduced as under:-- "The ground of delay for grant of bail in cases falling within the prohibition contained in subsection
(1) of section 497, Cr. P. C. before the effective amendment, was undoubtedly controlled by the discretion of the Court concerned. The facts varied from case to case and accordingly the discretion exercised was creating some anomalies. That is why the Legislature intervened and the law was made more certain. One of the changes effected in the statute from the previous practice in the exercise of discretion, was that the grant of bail on expiry of certain specified period and, under certain conditions was made a matter of right and not only of discretion. We do not agree with the learned counsel that the use of the word `shall' in the third proviso, is in the meaning of 'may'. Learned counsel failed to notice that while in first proviso the word 'may' has been used, in the second and third the word 'shall' has been used with a view to highlight it. Moreover, reading 'may' for the 'word' 'shall' in third proviso would be in large majority of cases to the detriment of the accused and his liberty, when it becomes due in the context of bail. We accordingly repel the argument of the learned counsel and hold that word 'shall' in third proviso will have to be read in its ordinary sense. That being some there is nothing in the entire proviso, its main part as also sub-clause (b) to show the grant of bail on ground of delay in cases covered thereunder has been left (in a general way) to the discretion of the Court. We also do not agree with the argument that the matter being entirely of the discretion of the Court it is empowered to take into account the expected/apprehended delay".
14. The upshot of the above discussion is that since the delay in the conclusion of trial is neither caused nor occasioned by an act or omission of the petitioner, hence he is entitled to the concession of bail on account of statutory delay. This petition is allowed and the petitioner Muhammad Khalid is admitted to bail after arrest subject to furnishing of bail bonds to the tune of Rs. 2,00,000/- with two sureties each of the like amount to the satisfaction of the learned trial court.
29. 15.Before parting with this order, it would be appropriate to mention that if subsequent to his release, the petitioner will cause any delay or hindrance towards the conclusion of trial, the complainant, if so advised, may move an application for the recalling of this order.
16. The above are the reasons of my short order of even date passed in the instant petition by virtue of which the petitioner was ordered to be released on bail.