The applicant is an accused in a case under section 302, P.P.C. Now pending in Court of IInd Additional Sessions Judge (East) Karachi, in connection with causing dagger injuries to deceased Abdul Razzak on 29-8-1981 at about 10-00 p.m. The applicant was arrested on 30-8-1981. He was, however, admitted to bail on 14-12-1982 by the trial Court on the ground that the applicant was a T.B. Patient, but his bail was cancelled by- this Court by its order, dated 23-7-1984 on the report of the Medical Board that his continuous imprisonment would not be detrimental to his life. Thereafter, his two bail applications were dismissed by the trial Court by its order, dated 23-4-1985 and 15-6- 1985 respectively. The applicant, however, succeeded in getting bail on 19-8-1985 from the trial Court on the same ground on which his two earlier applications had been dismissed. This bail was, however, cancelled by this Court by order, dated 5-12-1985. In the concluding part of the, said order it was, however, observed as follows:- "Before parting with the case, I would, however, like to direct the trial Court to conclude the proceedings in the case within four months from the date of surrender by the accused respondent No.2. In case the proceedings are not concluded within the said period of four months, for no act or omission of the accused, he will be at liberty to file fresh application for bail."
The applicant, after about four months of his surrender, made an application to the trial Court for bail, as four months had passed and the trial had not concluded as directed in the order referred to above. The said application having been dismissed by the learned find Additional Sessions Judge, Karachi by order, dated 1-7-1986, the applicant has filed the above application for bail in this Court.
2. Mr. Muhammad Hayat Junejo, learned counsel for the applicant, in support of this application for bail, submitted that the proceedings against the applicant have not concluded, in spite of the direction of this Court, for no act or omission of the applicant, and as such he is entitled to bail. In this respect he also referred to the Court diary and attacked the order of the learned Additional Sessions Judge while attributing the delay on the part of the applicant. The learned counsel invited particularly my attention to the observation of the learned Additional Sessions Judge made in -the said order that "on 5-6-1986, 16-6-1986 and 26-6-1986 P. Ws. Siraj and Muhammad Saleem put appearance but they could not be examined as Mr. Khawaja Naveed Ahmad learned counsel for the defence counsel has sought general adjournment from Honourable High Court as he has gone on a tour of USA", and "on a number of occasions witnesses put appearance in Court and were left unexamined due to the absence of the learned defence counsel". Learned counsel further submitted that the general adjournment granted to Mr. Khawaja Naveed Ahmad by the High Court was for High Court cases and not for the cases in the subordinate Courts. In the alternative, he submitted that, in any case Junior to Mr. Khawaja Naveed Ahmad was present in the Court on behalf of the applicant. He further submitted that on all the dates when the case was adjourned due to the alleged absence of Mr. Khawaja Naveed Ahmad, the applicant was not produced in Court by the Jail Authorities. So the case could otherwise not be proceeded with on those dates.
3. I have gone through the diary sheets of the said case. It is correct that the general adjournment granted by the Hon'ble Chief Justice of the High Court to an Advocate is relatable to the cases pending in the High Court or to the extent the order of adjournment speaks of. It cannot be urged on behalf of the said Advocate to be a ground for adjournment in the cases pending in the subordinate Courts. There is, however, no mention in diary of 26-5-1986, 5-6-1986 and 16-6-1986 that any counsel for the applicant, or Mr. Khawaja Naveed Ahmad, or, for that matter, his junior was present in Court. It is only on 26-6-1986 that "Junior Advocate for Mr. Khawaja Naveed, Advocate put in an appearance to argue, the bail application, and it is this day for the first time that the diary mentions "Mr. Khawaja Naveed Ahmad Advocate for accused is (sic) gone to America since 5-6- 1986." On 8-7-1986, the defence counsel is again stated to be absent It is true that on aforementioned dates Jail Authorities also failed to produce the applicant, but the fact remains that had he been produced, the case could still not have proceeded due to the absence of the defence counsel. I am, therefore, of the view that the applicant. In a way, though indirectly, can be said to be have acted as contributory to causing delay in the conclusion of the trial.
4. It is really painful to note that the Jail Authorities failed to produce the applicant on as many as eight dates of hearing, viz. 25-1-1986, 8-2-1986, 11-3-1986, 13-3-1986, 24-3-1986, 7-4-1986, 22-4-1986 and 7-5-1986, in spite of the fact that the Superintendents of the Central Jail/Landhi Jail were served with the production orders for the said dates, but either the applicant was produced nor any reply was sent by the said Authorities.
5. Mr. Abdul Majeed Pirzada, learned counsel for the complainant submitted that the applicant had arranged with Jail Authorities for his non-production in the Court in order to cause hindrance and delay in the trial, within the time fixed by this Court. He also stated at the bar that, in fact, this compelled the complainant to move an application before the trial Courts who was pleased to issue contempt notices under sections 174 and 175, P.P.C. To both the Superintendents of the Jails.
He further submitted that in spite of the issuance of the contempt notices by trial Court to the said Superintendents, on a number of dates, and also to appear in person, neither the Jail Authorities produced the applicant nor they put in an appearance in pursuance of the Court notices. It is noticeable that on all dates of hearing, except once or twice when the summons could not be issued or returned un-served, the prosecution witnesses were present and had to return unexamined for the non-production of the applicant. It is really very sad and regrettable that the State functionaries do act in a manner which hamper the proper administration of justice.
6. It is also noticed that on the dates when the applicant and his counsel were both present i.e. On 25-2-1986. 16-4-1986 and 18-5-1986, the case proceeded and the prosecution witnesses Khaliq Shah, Mohammad Ishaque, Mushtaq Ahmad and Dr. Nisar Mangi were examined and it has been stated by the learned Judge that "all the material witness have been examined and have implicated the applicant in the commission of crime". Mr. Abdul Majeed Pirzada also submitted that after the making of the bail application in the High Court, two more witnesses, have been examined, and the case is likely to conclude within 3-4 weeks.
7. Mr. Sattar A. Shaikh, learned Additional Advocate-General supports Mr. Pirzada and submits that the case is likely to be concluded in a month or so.
8. Learned counsel for the applicant laid great stress on they non-compliance of the directions of this Court, quoted above, and placed his reliance on a case reported as Akhlaq Ahmad v. The State 1977 PCr.LJ 196. It is true that there was a direction to the trial Court to A complete the trial within 4 months but it is noted with satisfaction that the learned trial Court did all its best that was within its power fort expeditious disposal of the case.
9. In view of these circumstances and the statement of the learned A.A.-G. That it is very likely that the trial of the applicant will be concluded in a month or so, I deem it proper to decline the bail and direct the trial Court to conclude the trial within one month from the date of the receipt of this Order.
10. Before parting with this case, let me mention that the learned counsel for the applicant, while replying to the submissions of the complainant's counsel, raised a plea, though half-heartedly, that the applicant is otherwise entitled to bail under the second proviso to section 497(1), Cr.P.C., but I do not feel inclined to consider this ground for the reason that it does not seem to have been urged before the learned trial Court as the order is completely silent about it.
11. In the end, I direct the Registrar of this Court to send a copy of this order to the Secretary, Home Department, Government of Sind, alongwith copy of diary-sheets, inviting attention to the conduct of the Jail Authorities in not producing the applicant on repeated dates of hearing; or submitting any reply to the Court, in spite of the fact that the production orders were duly served on them and not only that, but repeated contempt notices were also issued to them for appearance in person to show cause as to why action should not be taken against them, with particular reference to paras 4 and 5 above.
12. The Registrar is further directed to place a copy of this order before the Hon'ble Chief Justice, whose anxiety and efforts for speedy disposal of cases are well known, for taking up the matter with the Government, if deemed proper, on administrative side, at a higher level, for the removal of causes of delays in the administration of Criminal Justice, which lie within the power and control of the various Government agencies, such as the one involved in the above case.
13. The application for bail is, therefore, dismissed and consequently the Miscellaneous Application No. 1077 of 1986 is also dismissed as infructuous.