RASHIDA ASAD, J. This is the forth bail application moved by applicant Irshad Ahmed in crime No.415 of 2013 under sections 324/ 337-D/31, P.P.C., registered at P.S. Mehmoodabad, Karachi, mainly on three grounds that the applicant (i) being senior citizen, (ii) due to spread of covid-19 and (iii) delay in conclusion of trial, is entitled to be released on bail. Though, learned counsel for the applicant attempted to argue present bail application on merits, however, since earlier bail applications of the applicant have been rejected while considering all relevant points and the submissions of the applicant, therefore, I would not like to dilate upon the merits of the case and would only confine myself to the aforesaid three grounds, which according to learned counsel were not available at the time of filing of earlier bail applications. Learned counsel for the applicant while placing reliance on the case reported as Raja Muhammad Nadeem v. The State and another (PLD 2020 SC 282), has referred to a suggestion, given by the learned Attorney General for Pakistan, for release of prisoners, in the wake of the COVID-19 risk, contain in clause (c), which reads as under:
(c) benefit shall be extended to UTPs who are 55 years of age or older and then other male UTPs provided there is no history of past convictions."
2. In support of such contention the learned counsel submitted that the applicant is more than 60 years of age, has not been previously convicted and thus is entitled to release on bail. On next ground granting of bail in view of delayed trial, learned counsel for the applicant has argued that the applicant had undergone incarceration for a period of 17 months and there is no likelihood of the trial being concluded in the near future and such delay could not be attributed to the applicant. In support of his contentions he has relied upon the cases reported as Muhammad Azeem v. The State and others (2020 SCMR 458) and Irfan Masih v. The State and others (2020 MLD 1877).
3. Conversely, learned A.P.G as well as learned counsel for the complainant, opposing the present bail application, have argued that delay in conclusion of trial is not on the part of the prosecution rather, delaying tactics were adopted by the accused side; that benefit of old age could not be extended to the applicant who remained fugitive from law, and that the relevant suggestion of the learned Attorney General for Pakistan, in the Suo Motu case is not applicable in the present case; that trial is at the verge of conclusion and fixed for cross-examination of the MLO and at this advance stage of the trial if the applicant is allowed bail, the complainant would be seriously prejudiced. Reliance has been placed upon the cases reported as Awal Gul v. Zawar Khan and others (PLD 1985 SC 402), Faisal Jaffari v. The State (2019 MLD 1436) and Babar Hussain v. The State and others (2016 SCMR 1538).
4. I have heard learned counsel for the parties and have perused the record.
5. As regard to the first submission of the learned counsel for the applicant, referring a suggestion made in the Suo Motu case, is concerned, it is observed that such relief may be considered only to the UTPs, who were charged for offences under non-prohibitory clauses of under vagrancy law or offences carrying a sentence of less than three years. Whereas, the applicant has been charged with offences under sections 324/337-D, P.P.C. Thus, in the present case offences alleged against the present applicant fell within the prohibitory clause of section 497, Cr.P.C. therefore, in my humble opinion, the case of the present applicant does not fall under the category as relied by the learned counsel for the applicant.
6. This Court had refused the anticipatory bail application of present applicant on 06.03.2015 and after dismissal of the above bail application, he remained fugitive from law for more than 3 years.
Such conduct on the part of the applicant prima facie shows that he thwarts the process of investigation as well as trial. It is well settled that unexplained noticeable abscondence of an accused deprives him some of the normal rights granted to him by procedural as well as substantive law. Perusal of fresh progress report submitted by the trial Court on 15.12.2020, reflects that on 24.11.2020 the complainant was in attendance and the case was adjourned on the request of accused/applicant to 01.12.2020, when learned defence counsel had moved an application under section 265-K, Cr.P.C, which was dismissed on 09.12.2020 after hearing both parties. It has further been informed by the learned trial judge that on 15.12.2020, counsel for the accused required him to make a reference, as the accused has lost faith in the learned Judge, who directed the counsel to make proper application before the proper forum. It is observed that in cases where bail is sought on the ground of statutory delay in conclusion of trial, conduct of the accused is to be seen, such as whether delay is designed by the accused side by adopting various modes and if the Court reaches on the conclusion from any source that delay is designed by the accused, in such situation, even on delay ground, bail shall not be granted. On this view, authoritative proposition of law is settled by larger Bench of honourable Supreme Court in case of Liaqat Hussain v.
Federation of Pakistan (1999 PLD SC 504), it is held that:- "Before concluding the above discussion; it will not be out of context to point out that third proviso to section 497 of the Criminal Procedure Code is also substantially contributing towards the delay in the disposal of criminal cases as it entitles an accused person 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 in ensure that the trials of their cases are delayed, so that they may come out of jails on the expiry of the above statutory periods. 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 laid 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".
7. Admittedly, the trial is at the verge of conclusion and delay in conclusion of trial could not exclusively be attributed on the prosecution but the defence is also equally responsible. In this situation, I have also gone through the case of Haji Muhammad Siddique and others v. The State (PLD 1994 SC 93), wherein, bail was refused to accused when the Investigating Officer was only remained to be examined.
8. Coming to the next issue raised by the applicant that he is a senior citizen, that also cannot be the basis of granting bail. Now the law is settled that old age itself is no ground for grant of bail unless the person is sick and infirm. No such report regarding infirmity or sickness of the petitioner is available on record. The case law relied upon by the learned counsel for the applicant is distinguishable from the facts of the 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. In this view, I am fortified by the following reported judgments. The State v. Haji Kabeer Khan (PLD 2005 SC 364) and Muhammad Faiz alias Bhoora v. The State and another (2015 SCMR 655). As regards the ground of Covid-19 is concerned, it is observed that the Government has taken steps to provide complete protection to the prisoners inside the jails and the learned counsel for the applicant has failed to place, anything on record showing that the applicant is suffering with any serious health issue, therefore, this submission of the learned counsel for the applicant is misconceived.
9. In these circumstances, the instant bail application is dismissed, however, it is observed that substantial progress has been made in this case and trial of the accused is nearing completion, therefore, proper course in such a situation for this Court would be to direct the trial Court to decide the case within a specified period, therefore, the learned trial Court is directed to decide the matter within two months from the receipt of this order without fail and report compliance through MIT of this court. These are the reasons for the short order announced on 22.12.2020.