MUHAMMAD WAHEED KHAN, J.---Petitioner, Abdullah Khan, through this petition is seeking post arrest bail on merits of the case as well as on the ground of statutory delay as he is behind the bars for more than two years and trial of case FIR No.836 dated 11.07.2018 registered under sections 302/ 324/ 337-F(iii)/337-F(i)/337-F(v) / 337-F(vi)/ 148/149, P.P.C. at Police Station Iqbal Town, Lahore has not been concluded so far.
2. One Muneeb Tahir alias Munni was shot dead and two others Bilal Khawaja and Danial were sustained Injuries at their persons on 11.07.2018 at 12:25 a.m. (night) and the machinery of law was set into motion by Tahir Mirza father of the deceased, hence, this case.
3. Pro and contra arguments have been heard. Record perused.
4. Record goes on to evince that the petitioner is named in the promptly lodged FIR with the accusation' that he fired a pistol fire shot at Muneeb Tahir alias Munni and the said injury proved fatal and thereafter, he again fired a pistol shot on Bilal Khawaja, which landed at his left thigh. The petitioner was arrested in this case on 07.08.2018 and during the course of investigation, pistol 9 mm and a motorcycle, allegedly used in the occurrence, were stated to have been recovered from his possession and prima facie medical evidence fully supports the accusation levelled by the complainant and the injured PWs against him. So, for the foregoing reasons, the petitioner is not eligible for the post arrest bail on merits of the case.
5. So far as grant of bail on the ground of statutory delay is concerned, during the pendency of this petition a report was requisitioned from the learned trial Court qua the progress in the trial and in response to that the same was submitted vide letter No.70 dated 01.04.2023. On going through the same it is noticed that the learned trial Court has observed the reasons for delay in conclusion of trial as under;- a) The accused/petitioner was arrested on 07.08.2018. b) He was charge sheeted on 23 .02.2019 c) The accused/petitioner or his co-accused persons sought about (25) adjournments. d) Whereas, complainant party sought for about (25) adjournments. e) Bar was on strike on (08) dates of hearing. f) The learned Presiding Officer was either on leave/busy in other official duties on (06) occasions. g) Case was adjourned on (07) dates of hearing for prevalence of COVID-19 h) The accused/petitioner was not produced from Jail on one (03) date of hearing i) Whereas, the case was adjourned in view of joint request of both the parties, on (05) occasions. j) An application under section 265-K Cr. P. C. consumed two (02) dates of hearing. k) Vide interim order dated 06.03.2021 this court passed negative remarks against the accused that they are playing hide and seeks with the court.
04. The depiction given above clearly reflects that the delay in the conclusion of the trial is attributable to the accused/ petitioner. Despite recording of chief statements of eye-witnesses on 03.12.2020, the accused Abdullah has not cross-examined them. Last and final opportunity has been granted to him to cross-examine the PWs vide interim order dated 18.02 2023."
Report further reveals that examination in chief of PW-1 and PW-2 was recorded way back on 03.12.2020 and that of PW-3 on 01.10.2022, the said PWs are yet to be cross-examined by the accused/petitioner. The learned trial Court further observed that the prosecution had already given up PW Muhammad Hamza Mirza being unnecessary and Syed Daniyal injured PW for the reason that he had not been appearing before the Court, due to life threats extended by accused persons. (Underline has been provided for emphases).
6. I have also gone through the interim order sheets annexed with this petition and noticed that vide order dated 03.12.2020, the learned trial Court could manage to record examination in chief of Muhammad Tahir Naeem as PW-1 and Khawaja Bilal as PW-2 but till date, they have not been cross-examined by the defence on one pretext or another. The learned trial Court further highlighted the conduct of the accused persons in the above said interim order dated 03.12.2020 as infra;- "The present case was fixed for prosecution evidence. The complainant along with witnesses is present in the court since morning. Initially, the time of 11:00 o'clock was fixed for recording the prosecution evidence/examination in chief of PWs. However, as this court was busy in recording evidence in the case titled "Shakeel Hussain v. Asif Hussain etc" so, the present case was kept in waiting. Proxy counsel for the accused Abdullah Khan was present at 11.O0 am however, he left the court on the pretext that he has to attend the Hon'ble Lahore High Court, Lahore. Later on he did not turn up. Even the accused who are on bail had not bothered to appear before the court on each time when the case was called. One of the accused namely Ali Raza is also absent since morning he be summoned through non bailable arrest warrants. Despite the fact that the case was kept in waiting and taken up again at 02.00 pm and then at 03.30 pm only counsel for the accused Khawar Ali namely Mr. Naveed Tariq Awan, Advocate is present. Learned counsel for the complainant stated at bar that conduct of the accused is creating hurdles in the recording of evidence. The accused are constantly passing threats to the complainant as well as witnesses, due to such threats one of the PW namely, Syed Danial has refused to appear before the court to testify in this case. Learned counsel for the complainant further complained that the Naib court of this court had also passed a message of accused Abdullah Khan to PW Bilal Khawaja to attend the call of some Yaseen and later on the said Yaseen made a call to Bilal Khawaja which was not responded and such state of affairs reflects that how powerful the accused are, as they are even using officials attached with this court to harass the PWs In such scenario this court has no other option but to record the statement of witnesses present before the court since morning as they are appearing before the court on each and every date Examination in chief of Muhammad Tahir Naeem as PW1 and Khawaja Bilal as PW 2 recorded while cross-examination kept reserved upon the request of accused side. The accused are directed to ensure the presence of their learned counsel for cross-examination on PWs on 19.12.2020. Present PWs are bound down for the date fixed"
There is no denial of the legal proposition that according to 3rd Proviso of subsection (1) to section 497, Cr.P.C. an accused can be released on bail, 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 the said offence has not been concluded. The statutory right to release on bail is however, subject to two exceptions, one was embodied in 3rd Proviso as observed above and second provided in 4th Proviso to section 497, Cr.P.C. As per these exceptions, the right to release on bail on the ground of delay in conclusion of trial was not available to an accused if: (i) the delay in conclusion of the trial is occasioned by an act or omission of the accused or by any other person acting on his behalf, or (ii) the accused is a convicted offender for an offence punishable with death or imprisonment for life or is in the opinion of the Court a hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life. The apex Court of Pakistan in case titled as "Shakeel Shah v. The State and others" (2022 SCMR 1) had held with respect to the first exception that the act or omission on the part of the accused to delay the timely conclusion of the trial must be the result of a visible concerted effort orchestrated by the accused. Merely some adjournments sought by the counsel for the accused cannot be counted as an act or omission on behalf of the accused to delay the conclusion of the trial, unless the adjournments are sought without any sufficient cause on crucial hearings, i.e., the hearings fixed for examination or cross-examination of the prosecution witnesses, or the adjournments are repetitive, reflecting a design or pattern to consciously delay the conclusion of the trial. Thus, mere mathematical counting of all the dates of adjournments sought for on behalf of the accused is not sufficient to deprive the accused of his right to bail under the 3rd proviso.
7. In view of the above case law settled down by the top Court, I have analyzed the facts and circumstances of the case in hand and noticed that according to the report furnished by the learned trial Court, the petitioner/accused or his co-accused persons sought about twenty five
(25) adjournments and likewise, the complainant party also sought about same number of adjournments, whereas case was also adjourned on account of some other multiple reasons like Bar was on strike, the Presiding Officer was on leave or due to the pendency of application under section 265-K, Cr.P.C. etc. The crucial thing in this case as stated above, is that examination in chief of two prosecution witnesses had been recorded by the learned trial Court way back on 03.12.2020 but since then the defence has not conducted cross-examination upon them and one of the crucial witness, namely, Syed Daniyal Shah an injured PW had been given up by the prosecution for the reason that he had not been appearing before the Court due to life threats extended by the accused party and this factum has also been mentioned by the learned trial Court vide its report mentioned above and similar view has been expressed by the learned trial Court about extending threats to the prosecution witnesses by the accused persons in its order dated 03.12.2020 as observed in paragraph No.6. Even otherwise, interim order sheet of the case reveals that adjournments were sought by the defence side repeatedly on crucial hearings without any sufficient cause, especially the hearing flied for cross-examination of prosecution witnesses already recorded, which is reflecting the design that the accused party is consciously creating hurdles in conclusion of trial. Apart from the fact that one of the crucial prosecution witness, namely, Syed Daniyal Shah stayed 'away from dock' on account of threats to his life as observed above. The august Supreme Court of Pakistan in case of "Abdul Rashid v. State" (1998 SCMR 897), while dealing with a similar situation had been observed which reads 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. 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."
Similar view was given by the august Supreme Court of Pakistan in its recent pronouncement passed in case of "Major (R) Muhammad Iftikhar Khan v. The State and another" (2022 SCM R 885) with the observation that if the delay in conclusion of trial was attributed to the accused , he is not eligible to be released on bail on the ground of statutory delay under 3rd Proviso to section 497(1), Cr.P.C. In another judgment passed in case titled "Babar Hussain v. The State and others" (2016 SCM R 1538), the top Court observed that even after lapse of two years, the conduct of an accused seeking adjournments can be taken note of and bail can be denied by a Court even on the statutory ground.
8. So, keeping in view the supra factors, the conclusion is inescapable that the present petitioner is not entitled to be released on bail on merits as well as on the ground of statutory delay in concluding the trial. Resultantly, the instant petition stands dismissed.
9. Before parting with this order, I, observe that since case in hand pertains to the year 2018, in which the accused persons had been indicted way back on 23.02.2019 and so far, the trial is still at initial stage as the learned trial Court could manage to record the 'examination in chief' of three prosecution witnesses only, so in that eventuality, the Court seized with the trial is directed to Conclude the trial expeditiously, preferably within a period of three months from the date of receipt of certified copy of this order and if needed, the case be heard on day to day basis by appointing counsel(s) at State expenses, if the Court feels that the learned defence counsel(s) is not cooperating with the court.