1. Through this 2 petition, Shahbaz alias Thatha petitioner seeks post-arrest bail in case F.I.R. No. 28, dated 01.02.2014, registered at Police Station Saddar Lalamusa, District Gujrat in respect of offences under Sections 395 and 412, PPC, his earlier petition i.e. Crl. Misc. No. 4054-B of 2015 was dismissed having been withdrawn vide order dated 14.04.2015 when after having argued the case at full length, his learned counsel opted to withdraw the same.
2. 2.At the very outset, learned counsel for the petitioner contends that he only urges the ground of statutory delay in trial of the petitioner, who is behind the bars since 29.05.2014 and despite lapse of more than one year and four months, his trial has yet not been concluded.
3. 3.Arguments heard. Record perused.
4. 4.I have taken into consideration the sole ground urged today by the learned counsel for the petitioner that petitioner is behind the bars since 29.05.2014 and despite lapse of more than one year and four months his trial has yet not been concluded, suffice it to observe that learned counsel for the petitioner has placed on record certified copy of complete order sheet of the learned trial Court which reflects that examination-in-chief of PW-1 Saqib Amin was recorded on 24.02.2015, however, he was not cross-examined by the defence side and case was adjourned, then, again on 10.03.2015, 20.04.2015, 16.05.2015 and 05.09.2015, case was adjourned on the requests of accused side on one pretext or the other. Order sheet further depicts presence of prosecution witnesses before the learned trial Court on different other dates of hearing i.e. 19.11.2014, 02.12.2014, 16.12.2014, 19.01.2015, 07.02.2015, 21.02.2015, 24.02.2015, 16.05.2015, 30.05.2015, 13.06.2015, 27.06.2015, 11.07.2015, 05.09.2015 and 19.09.2015 but because of multiple reasons, they could not be examined, therefore, delay if any, cannot be attributed to the prosecution alone. I have noticed that on 22.09.2015 a report was sought from the learned trial Judge directing him to specify the reasons for delay in conclusion of the trial and in pursuance thereof, learned trial Court/Judi. Magistrate Section 30, Kharian, vide his report dated 30.10.2015, fixing responsibility of delay in the trial upon the defence side, has observed as under: "I have the honour to submit that the subject criminal case is pending in the Court of the undersigned in which next date of hearing is 17.10.2015 for recording of prosecution evidence. It is also humbly submitted that prosecution witnesses are regularly appearing before the Court and the accused of the case including the accused Shehbaz have been seeking adjournments mainly on the ground that they have yet to engage their counsel. Lastly, it is humbly submitted that the delay in conclusion of trial is clearly attributed to the Accused side."
5. The above mentioned observations of the learned trial Court read with its order sheet, clearly reflect that accused side is delaying the trial on one pretext or the other, It is by now, well settled that while computing the period of delay on the part. of the accused or the prosecution the Court has to consider the cumulative effect of the adjournments sought in this regard. If the prosecution witnesses appear on one date and the case is adjourned on the request of the accused then the delay subsequently caused in recording evidence of these witnesses cannot be excluded in favour of the accused. I respectfully place reliance on the case of Abdur Rashid Versus State (PLJ 1998 SC 1241) wherein the Hon'ble Supreme Court of Pakistan has held 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.
6. 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.C." The Apex Court further observed in the case referred above that while ascertaining cumulative effect of ultimate delay in disposal of the case, it would not be merely mathematical calculation of excluding such days for which, adjournment was obtained by the accused or his counsel. In . a very recent unreported judgment titled "Zubaida Khatoon versus Mukimmad Ashraf Ejaz & another" (Crl P.L.A. No. 253-L of 2014), reiterating the esteemed guide line while deciding bail petition on the ground of statutory delay, the Hon'ble Supreme Court of Pakistan has held as under: "We may observe here that for considering the case of an accused for grant of bail on the ground of statutory delay, simplicitor exercise of making mathematical calculation is contrary to the mandate and spirit of law, to see that on how many dates of hearing adjournments were sought by the accused side and on how many dates the matter could not proceed for other reasons not attributable to him. What is more important is that the Court has to see the overall conduct of the accused, keeping it in juxtaposition to varioue requests for adjournment made by him to delay the proceedings in the case and its cumulative effect. In a situation, where the prosecution witnesses are in attendance before the trial Court and the matter is likely to be proceeded, if a request for adjournment is made by the accused or his counsel with the calculated object of not proceedings with the case or for causing harassment and inconvenience to the prosecution witnesses even, one such instance could be fatal for refusal of bail to him on the ground of statutory delay. In the instant case, from the reproduction of some portion of the impugned order, it is evident that it was not once or twice, but at least on ten dates of hearing after framing of charge in the criminal case against Respondent No. 1 that calculated steps were taken from his side by seeking adjournments when the prosecution witnesses were in attendance, to delay and obstruct the proceedings. This conduct of Respondent No. 1 has disentitled him from the benefit of grant of bail on the ground of statutory delay even after the expiry of more than two years period during which no adjournments were obtained by him or the delay could be attributable to the prosecution. If further guidance is needed in this regard, reference can be made to the case of Abdur Rasheed versus The State (1998 SCM R 897)." In view of all above, I am of the view that the delay in conclusion of the trial cannot be attributed to the prosecution and the same is on the part of the defence. Therefore, this petition being devoid of any force is accordingly dismissed. However, learned trial Court is directed to conclude the trial in this case expeditiously preferably within a period of three months after the receipt of this order.