ABDUL MAALIK GADDI, J.---By this order , I intend to dispose of criminal bail application, filed on behalf of the applicant Faisal Jaffari, arising out of Crime No.10 of 2011, registered under Sections 302/365/109 and 34, P.P.C. at Police Station Baloch Colony , Karachi . The bail plea filed on behalf of applicant was initially dismissed by the learned IIIrd Additional District and Sessions Judge, Karachi (South) vide its order dated 15.08.2016 and thereafter , by this Court it was also dismissed on 09.08.2017. While dismissing the bail plea of the applicant, it was observed by this Court as under:- "7. In view of the above discussion, I am of the view that the applicant has not been able to make a case for bail.
Resultantly , this bail application is dismiss ed, however , learned trial court is directed to expedite the trial and record evidence of remaining witnesses and conclude the same within the period of four months and submit compliance report through MIT-II; the applicant would be at liberty to move fresh bail application after expiry of said period if the trial is not concluded, which if filed, shall be decided on its own merits."
2. Subsequently , a second bail applicatio n was moved before learned trial Court on merits as well as on statutory ground of delay in non-conclusion of trial and that too received the same fate, thereafter , counsel for the applicant has filed present application before this Court for grant of bail on statutory ground of delay in non-conclusion of trial by the trial Court.
3. The brief facts of the case are that complainant has lodged an FIR bearing Crime No.10 of 2011 at police station Baloch Colony , Karachi under Sections 302/365/109 and 34, P.P.C. alleging therein that on 28.12.2010 at 2205 hours his son Muhammad Ali Butt, aged 35 years was present in front of his house situated at Manzoor Colony , Karachi and while the complainant was talking with Azhar and Aamir , at about 2215 hours a Mobile Van of Police Station Ferozabad and two Corolla Cars stopped on the opposite road and ten persons got down, some of whom were in uniform and some in civilian clothes. ASI Faisal Jaffery of police station Ferozabad caught hold of his son and made him sit in the police mobile and took him away . The motorcycle of his son was also taken away . The complainant asked as to where his son was being taken, he was asked to come to the police station Ferozabad.
The complainant went to the police station Ferozabad, but was not allowed to enter into it and was asked to come next day. On 29.12.2010 at 1100 hours, the complainant came to police station Ferozabad and met with Incharge/SHO who revealed that his son had been killed in police encounter and his dead body was lying at Edhi Cold Room. It is further alleged that ASI Faisal Jaffery and his police party who on the instigation of Muzaf far son of Azhar had murdered his son Muhammad Ali Butt and showed it to be an encounter .
4. I have heard learned counsel for the respective parties and perused the material placed on record.
5. It has been argued by learned counse l for applicant that he has not agitated the bail application on merits but only on the ground of statutory delay in non-conclusion of trial within the period of two years; that bail applications of applicant were dismissed by the learned trial Court twice before and thereafter , the first application filed before this Court was disposed of with direction that the trial of the case be concluded within the period of four months but according to him, despite of direction issued by this Court, trial has not been concluded. It has also been argued that applicant was taken into custody on 21.04.2015 and the applicant/accused is regularly attending the Court along with his counsel; that almost three years have been passed, but the trial has not been concluded; that since the arrest of the applicant, the case had been adjourned due to absence of defence counsel only one date, however , on the several dates, the proceedings were adjourned either due to absence of the prosecution witnesses, absence of the Presiding Officer due to leave, KBA strikes, absence of Investigating Officer, absence of case property or the non-production of the accused by the jail authorities; that as per Gazette of Pakistan dated 21.04.201 1, the amendments were made in Section 497 Act-V 1898 of Criminal Procedure Code, and according to the said amendments, the applicant is entitled to be released on bail on the sole ground of hardship as the applicant is in continuous custody for more than three years; that since the arrest of the accused, in total, 114 dates have been adjourned, but only eight prosecution witnesses have been examined out of twenty nine witnesses, as such, according to him, as per case diarie s available on record, delay , if any, howe ver, is not to be attributed on the part of applicant; that according to record, the applicant neither previous convict nor desperate, dangerous or hardened criminal, as per jail report, therefore, according to him, under the aforementioned facts and circumstances, applicant is entitled for bait, but the bail grounds as agitated by the applicant supported by the case diaries have not been properly appreciate d by the trial Court. During the course of arguments, learned counsel for applicant has relied upon .the case diaries available on record and has also reiterated the same facts and grounds which he has urged in the bail application and has contended that it is a fit case of hardship and accused may be granted bail due to non-conclusion of trial within the period of two years. In suppor t of his arguments, he has relied upon the case laws, which are as follows:-- Shabeer v . The State reported as 2012 SCMR 354 ; ii. Jamshed Khan v . National Accountability Bureau through Chairman and others reported as 2018 PCr .LJ 341; iii. Zulfiqar Ali Jatoi v . The State reported as 2012 MLD 1726 ; iv. Sajawal alias Bhola v . The State and another reported as 2012 MLD 583 ; v. Naheem Hussain v . The State reported as 2012 MLD 246 ; vi. Jamsheed Ali v. The State reported as 2012 PCr .LJ 1022; vii. Ghazanfarullah Khan Pathan v . The State reported as 2012 PCr .LJ 1613; viii. Zameer v . The State reported as 2012 YLR 477 ; ix. Syed Hasnain Raza Zaidi v . The State reported as 2012 YLR 1496 ; x. Ali Ahmed v . The State reported as SBLR 2018 Sindh 31;
6. Conversely , learned APG as well as learned counsel for the complainant have vehemently opposed the grant of bail in favour of the applicant on the ground that heinous crime has been committed by the applicant and son of the complainant has been brutally murdered by the applicant along with co-accuse d showing the same as police encounter; that the bail application of the applicant has already been rejected twicely by the trial Court as well as once by this Court; that according to them , delay is not on the part of prosecution and it was the applicant/accused who was adopting delaying tactics; that father of accused/applicant had filed an application for transfer of the case vide Transfer Application No.31 of 2015 in order to delay the case; that applicant had also filed a statement dated 22.03.2018 before the trial Court stating therein that applicant had already filed Criminal Transfer Application No.19 of 2018 before this Court, which is pending adjudication. Apart from this, that applicant had completed the cross- examination on complainant within one year just to delay the case and create a ground for bail; that in this matter , eight witnesses have been examined and there remains only two material witnesses viz. Dr. Kareem Shaikh and SIP Zafar Ayaz. As far as the other remaining witnesses are concerned, their evidence are formal in nature, therefore, if at this stage, the bail is granted, the complainant would seriously preju dice, as according to them, the learned trial Court in its progress report, clearly attributed the delay in trial on the part of applicant and also highlighted the same in its bail order .
7. I have given my anxious thoughts to the contentions raised at the bar and have gone through the case papers available on record.
8. Applicant seeks bail on the ground of statutory delay in non-conclusion of trial within the period of two years. therefore, I have gone through the amended provision of Section 497, Cr.P.C., which says that where Court is of the opinion that delay in trial of the accused has not been occasioned by an act or omission of the accused or any person acting on his behalf, direct that such accused persons be released on bail, who is accused of an offence punishable with death, has been detained for such offence for continuous period exceeding two years and trial has not concluded provided that the above benefit will not be available to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinio n 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, but here in this case, it reveals from the record that the applicant/accused is nominated in FIR with specific allegation that applicant along with other police officials took away the son of complainant from the nearby of his house and thereafter , he was brutally murdered by showing him in police encounter . Tentatively , the act of applicant comes within the ambit of terrorism and extra judicial killing, therefore, on this ground alone, the applicant is not entitled for bail. Besides, in the case in hand, out of twenty nine witnesses, eight material witnesses including complainant have been examined. Their evidence are on record, which are self-explanatory . It appears that substantial progress has been made in trial by the trial Court and the case is about to conclude. As far as, the delay in conclusion of trial within the period of two years is concerned, it is noted that initially the case was assigned to learned IIIrd Additional Sessions Judge, Karachi (South) from where the bail application of the applicant was rejected, thereafter , the case was transferred to Vth Additional Sessions Judge, Karachi (South) and then to learned VIth Additional Sessions Judge, Karachi (South), where the case at present is pending. It is also noted that a statement dated 22.03.2018 filed by the counsel for applicant before trial Court stating therein that applicant had already filed Transfer Application No.19 of 2018 before this Court against Presiding Officer, which is pending. In the said statement, applicant had also shown his no faith upon the Presiding Officer. These aspects of the case clearly attributed the delay on the part of applicant.
9. It may be mentioned here that co-accused PC Abdul Latif Shar though grante d bail by this Court vide order dated 12.06.2012, but the same was recalled by the Hon'ble Supreme Court of Pakistan in Criminal Petition No.61- K of 2012.
10. It is pertinent to mention here that another aspect of the case, which cannot be ignored at this juncture, is that FIR v as lodged on 14.01.201 1 and applicant was apprehended on 21.04.2015. Applicant was well aware of the charge against him, but he opted not to surrender before the trial Court for a long period, which shows that the applicant by his conduct thwart the process of investigation as well as trial. It is now well settled that unexplained noticeable abscondence of an accused deprived him some of the normal rights granted to him by procedural as well as substantive law .
11. From the perusal of case diaries of the case and progress report submitted by the Presiding Officer of learned trial Court, which are available on record, it appears that the delay in conclusion of trial is on the part of applicant as he consumed one year time to complete the cross-examination of complainant. Besides this, the learned Presiding Officer in her progress report dated 16.01.2018 categorically stated that the delay in conclusion of trial is on the part of applicant/accused by mentioning each occasions/reasons of delay in the proceedings. For the sake of convenience, it would be proper to reproduce the said report, which reads as under:-- "That as per record on 19.8.2017 the above said order was received to this Court for compliance; thereafter , 1 put the case on fast track. On 24.8.2017, arguments heard on the point of issuance of summons/warrants as per list of witnesses dated 14.10.2015 instead of 15.4.201 1. On 29.8.2017 order passed on order sheet whereby office was directed to issue warrants to produce the attendance of remaining witness, whereas, evidence of PW-5 was recorded. On 14.9.2017 process returned served upon two PW, but called absent, therefore, NBWs against Zafar Hayat and Muhammad Saeed with direction to stop their salaries as well as show-cause notice for noncompliance by the DIG was ordered to be issued by the Court. On 21.9.2017 PW Azhar Hussain was present but the counsel was not present and adjournment application was moved by his junior advocate. On 27.9.2017 PW Head Constable Saeed was present and he was given up by the prosecution as Ex.16. PW-6 Zafar Hayat and PW-7 Azhar Hussain were also present. The examination-inchief of PW-6 Zafar Hayat was recorded by the Court but his cross-examination was reserved at the request of DDPP for the State for wants of clothes of the deceased (case property). At that time, the learned counsel for the accused also raised objection and made request to call the entire case property of Crime No.1441/ 2010 under sections 353/324/186/34, P.P.C. of police station Ferozabad before this Court. The cross-examination of the PW-6 was reserved upto next date for hearing on the objections, whereas, examination-in-chief of PW-7 was also recorded, despite filing the statement by the learned counsel for the accused wherein he stated that before the completion of evidence of PW-6, further evidence should not be recorded. Further cross-examination was reserved, arguments heard on bail application by the accused and' matter adjourned upto 11.10.2017 for evidence, while 5.10.2017 was fixed for arguments. On the above said date i.e. 2 7.9.201 7, reply of show-cause notice was also submitted by the DIG (East). 5.1.0. of police station Baloch Colony was also present and requested for time to make compliance for production of the case property i.e. clothes. On 15.10.2017 arguments heard on the point of production of entire case prope rty of FIR No.1441/2010. On 11.10.2017 both the PWs were present but due to absence of senior; counsel of accused, further evidence of PWs could not be recorded. On 19.10.2017, further cross-examination of the PW-7 was recorded and again reserved.
Arguments heard on bail application by the DDPP for the State and the complainant. On 26.10.2017 further examination-in-chief of PW-7 was recorded. Arguments heard on bail application by the prosecution and advocate for complainant, matter adjourned upto 02.11.201 7. On the above said date, order passed by the Court on the objection of production of entire case property of FIR No.1441/ 2010 of police station Ferozabad. On 8.11.2017 advocate for accused moved an application for review of order dated 02.11.2017 arid emphasized to decide first, therefore, the same was noticed to DDPP . On the next date, arguments heard but advocate for accused moved another application for calling the entire property of FIR No.1441/ 2010. On 13.11.2017, bail application filed by the accused was dismissed arid arguments heard. On 21.11.2017 accused was not produced by jail authority . On 23.11.2017 accused was again not produced but order announced in open Court, whereby both applications filed by the advocate were dismissed. On 2 7.11.201 7, advocate for accused moved an application for adjournment as he was intended to file revision application against the order passed by this Court and argued that it is the basic right of the accused, who is facing murder trial, therefore, in the interest of justice, matter adjourned upto 6.12.2017. On such date, DDPP for the State Mr. Kaleemullah was absent, who has been deputed/ notified by the Prosecutor General to proceed the instant case. On 12.12.2017 witnesses were called absent. Now the matter is fixed on 19.12.201 7.
Respected sir, the matter was fixed on 19.12.2017 on such date the Senior Counsel of the accused was not present, nor his Junior Counsel submitted any application for adjournment, witnesses were present, therefore matter adjourned upto 20.12.2017, on such date, the counsel for accused moved an application duly signed by the accused leveling false allegations upon the undersigned and the accused had shown mistrust upon the Court and emphasized to refer for transfer of the same to any other Court as he does not want to proceed before this Court. therefore, reference was made by the undersigned to the Registrar of Honorable High Court of Sindh for transfer of the case.
So far as, the delay in conclusion of trial is concerned, the accused had avoided to further proceed with the case on the pretext of pendency of revision application before the Honorable High Court of Sindh, therefore, in view of the above circumstances, delay is on the part of accused. Prosecution witnesses were in attendance."
In view of the above report, it appears that sufficient efforts have been taken by the trial Court to conclude the trial, but it was the applicant, who delayed the matter in conclusion of trial.
12. In the case of Javid-ur -Rehman and another v. The state reported in 2010 SCMR 1744 , although on one date, prosecution witnesses were present in Court but counsel for accused did not appear for recording of evidence, bail was refused by Hon'ble Supreme Court.
13. In view of the above, this bail application being no merits is I hereby dismissed . Since the matter pertains to year 2011, therefore, learned trial Court is directed to decide the case as early as possible in accordance with law under intimation to this Court through MIT-II and no unnecessary adjournment shall be granted to either side. The case E laws cited by the learned counsel for the applicant have been perused and considered by me but did not find applicable to the facts of present case. It is settled position of law that in criminal administration of justice, each case has to be decided on its own peculiar facts and circumstances and Courts are required to exercise jurisdiction independently . Reliance in this respect is placed on a case of The State v. Haji Kabeer Khan reported as PLD 2005 Supreme Court 364 and in the case of Muhammad Faiz alias Bhoora v. The State and another reported a 2015 SCMR 655 .
14. Before Parting with the order , I would like to make it clear that the observations made hereinabove are tentative in nature and would not influence the trial Court while deciding the case of applicant on merits.