ABDULLAH BALOCH, J.---This order disposes of Criminal Bail Application No,21 of 2018 whereby the applicant Syed Aminullah son of Azizullah is seeking post-arrest bail in case FIR No, 81 of 2016, Police Station FIA, Quetta, under Sections 23, 27 of Drugs Act 1976 read with sections 420, 468, 471, 109, P.P.C.
2. Facts of the case are that are that on 19th October 2016, the complainant Amir Bakhsh, Drug Inspector Quetta Balochsitan on the basis of complaint of one Muhammad Qaisar, Manager Operation of Messrs KAD & Company pertaining to selling of drugs without having any license, selling and stocking of branded lifesaving drugs without having selling license, selling and stocking of un-registered drugs, selling and stocking of unwarranted drugs, inspection was carried out by the relevant authorities, resulted in recovery of unregistered and expired drugs. In presence of the nominated persons (applicant and co--accused) the recovered articles were seized and samples were taken as required, and sent to the Drugs Testing Laboratory, (DTL) Quetta.
3. After registration of FIR, the accused/applicant along with co-accused Shanullah and Sanaullah were investigated and on completion thereof they were remanded to judicial custody and challan of the case was submitted in the trial Court i,e, learned Drugs Court of Balochsitan, Quetta. Earlier, the accused filed application for grant of bail before the learned trial Court and before this Court (Crl. Bail Application No,142/2016), which was rejected to the extent of applicant, while the accused Shanullah and Sanaullah were granted bail. The applicant again approached the trial Court for grant of bail, but again the concession of bail was declined to him, vide order dated 5th May 2017.
Whereafter, once again the accused-applicant approached this Court for grant of bail by filing the Criminal Bail Application No,58 of 2017, but the same was rejected, vide order dated 10th July 2017.
However, the trial Court was directed to expedite the trial and to dispose of the case within the shortest possible time. The accused-applicant again approached the trial Court for grant of bail, but the same was declined to him as is evident from the order dated 15th December Hence, the accused-applicant has filed this application.
4. At the very outset, the learned counsel for accused-applicant contended that he is only pressing this application for grant of bail mainly on statutory grounds as the accused-applicant is behind the bars from the date of his arrest and lapse of about 18-months, the prosecution has failed to conclude the trial expeditiously as directed by this Court vide order dated 10th July 2017; that the order sheets so maintained are suggesting that the delay so occasioned in concluding the trial is on two counts, i,e, firstly, due to failure of production of prosecution witnesses and secondly due to falling vacant the post of learned Presiding Officer/Chairman Drugs Court; that so far only six witnesses have been examined and the prosecution has to produce number of witnesses; that the applicant cannot be kept behind the bars for indefinite period; that the co-accused Shanullah and Sanaullah have been granted bail by this Court, thus on the rule of consistency the accused- applicant is entitled for grant of bail.
5. Learned Assistant Attorney General strongly opposed the arguments so advanced by the learned counsel for accused-applicant and contended the delay so occasioned in concluding the trial is due to non-appearance of the counsel for the applicant and the remaining co-accused, thus he is not entitled for grant of bail on statutory grounds; that the case of applicant is not at par to the case of co-accused Sanaullah and Shanullah; that sufficient incriminatory evidence is available on record connecting the accused-applicant with the commission of crime, thus he is not entitled for grant of bail.
6. Heard the learned counsel for parties and perused the record with their valuable assistant. So far as the merits of the case are concerned, the accused-applicant has been declared dis-entitle for grant of bail by this Court twice, thus there is no need to reiterate the merits of the case.
7. So far as the grant of bail on statutory ground due to delay in conclusion of the trial is concerned, suffice to state here that the FIR was lodged on 19th October 2016 and on the said date the accused-applicant was arrested by the FIA Authorities. Admittedly, the accused-applicant is behind the bars from the date of his arrest and presently 18-months have been passed, but the prosecution so far has only examined six witnesses, while the remaining witnesses are yet to be examined, but the fact remains is that presently the portfolio of Chairman Drugs Court is falling vacant and the Government has not so far promulgated notification for appointment of the Presiding Officer of the trial Court. When confronted with the learned Assistant Attorney General, he also made his ignorance about the specific timing for appointment/posting of Chairman Drugs Court or the period, with which all the witnesses will be examined and the case may be concluded.
The accused-applicant cannot be kept behind the bars for an indefinite period, when otherwise the co-accused persons namely, Shanullah and Sanaullah have been granted bail, thus the rule of consistency demands equal treatment.
8. Since, despite specific directions of this Court, the learned trial Court has failed to conclude the trial expeditiously and more over due to non-posting/appointment of Chairman Drugs Court, there is no specific time was shown by the prosecution to conclude the trial. In the such circumstances neither the accused-applicant can be kept behind the bars for indefinite period nor the prosecution can be permitted to delay the conclusion of trial at its own whims and choice. Not to say, about the prisoner accused, but also the accused on bail, have to suffer the anguish of trial on each and every day of hearing and such practice cannot be permitted for an indefinite period. The trial so commenced ought to have been concluded within the reasonable time. It is the duty of the Court to not only ensure the conduct of fair trial, but also to ensure the expeditious and early disposal of the case to save an accused from the anguish of trial. However, the picture in the case in hand is quite different, because not only the trial of the case has been delayed and the same is expanded on eighteen months, but the portfolio of learned Chairman Drugs Court is falling vacant and even the learned Counsel representing the State has also shown his ignorance about the exact time for the posting/appointment of Chairman Drugs Court as well as the period for completions of trial, thus it would be grave injustice with the accused-applicant to further keep him in jail at the mercy and whims of the prosecution to conclude the trial. The Hon'ble Supreme Court of Pakistan in the case of Riasat Ali v. Ghulam Muhammad and The State, PLD 1968 SC 353, has held that, "Delay in prosecution of accused amounts to abuse of process of law and is a valid ground for bailing out accused. " In the case of Anwar Saifullah Khan v. The State, 2001 SCM R 1040, the Hon'ble Apex Court has held that, "bail cannot be withheld as a punishment on the ground that the offences, the accused is charged for, are not bailable or grant of bail there was falling within the prohibition." Similar view has been taken in the case of Himesh Khan v. the NAB, 2015 SCM R 1092, wherein it has specifically held that, "An accused person cannot be left at the mercy of the prosecution to rotten in jail for an indefinite period. The inordinate delay in the conclusion of trial of detained prisoners cannot be lightly ignored provided it was not caused due to any act or omission of accused."
For the foregoing reasons, the application is accepted. The accused-applicant Syed Aminullah son of Syed Azizullah, is ordered to be released on bail, subject to furnishing surety in the sum of Rs,200,000/- with P.R. bonds of the like amount to the satisfaction of trial Court or Additional Registrar of this Court.
The observations, made hereinabove, are purely tentative in nature and the learned trial Court shall not get influenced by it in any manner.