SHEIKH ZUBAIR, J.-- The petitioner, who along with others, is involved in a case under sections 302/307/324/148/149 PPC arising out of F.I.R. No. 366, dated 3-8-1990, registered at Police Station Sargodha Road, Faisalabad, seeks to be admitted to bail on statutory ground alleging therein that though he is behind the bars for the last more than two years yet his case has not concluded and he is not responsible for the delay.
2. Learned counsel for the petitioner was directed to examine the effect of Ordinance XV of 1992, whereby provisos third and fourth to sub-section (2) of section 497 Cr.P.C, were omitted. Learned counsel has contended that according to the Full Bench decision of High Court of Sindh, Karachi, dated 28-1-1993, passed in Criminal Bail Application No, 839-290 of 1992-Asif Zardari vs. The State, even on question of pure delay, the Courts are competent under section 561-A, Cr.P.C., to release an accused person on bail on account of delay in the conclusion of trial as the law requires that the trial must commence and conclude as early as possible and no accused person should be kept behind the bars unnecessarily. He has relied upon Riasat Ali vs. Ghulam Muhammad (P.L.D.
1968 S.C. 353), wherein the learned Judges observed:- "Inordinate delay in the prosecution of a case, if not explained by the prosecution amounting to an abuse of the process of law, can be considered as a ground for bailing out an accused person even in a murder case depending on the nature of the delay and the circumstances that have caused it. The prosecution is expected to proceed with its case with all despatch eliminating every avoidable delay in order bring it to a close and thus to determine the fate of an accused person which hangs in the balance as long as the proceeding do not terminate one or the other."
3. The learned Law Officer appearing for the State adopted the reasons which prevailed with the learned trial Judge and submitted that delay was caused by the conduct of the petitioner, as the accused party has been moving the higher police officers for re-investigation of the case unnecessarily which has delayed the submission of the challan. In addition to that on 22-2-1992, Zaheer Ahmad, real brother and co-accused of the petitioner was summoned by the trial Court, who was found innocent during the investigation by the police. The petitioner undertook to inform his brother to join the proceedings. The perusal of various interim orders shows that Zaheer Ahmad has not joined the proceedings in spit of the fact that non-bailable warrants for his arrest were issued by the trial Judge, but those could not be executed as the Army authorities refused to cooperate with the civil court and did not allow aforesaid Zaheer Ahmad to join the proceedings, probably on the ground that the Commanding Officer has taken up this position that Zaheer Ahmad plea of alibi is justified under the law, as he was not present at Faisalabad at the time of commission of offence; rather he was present at the place of his duty at the relevant time.
4. Learned counsel for the complainant adopted the arguments of the learned Law Officer and further submitted that Zaheer Ahmad deliberately has not put in appearance just to delay the proceedings in order to make a ground for the release of the petitioner on bail on statutory ground.
He further contended that due to the amendment brought about in sections 497 Cr.P.C., whereby provisos third and fourth have been deleted, the Court cannot enlarge an accused person on bail on statutory ground even under the provisions of section 561-A, Cr.P.C., though the delay may be unconscionable. He has also referred to various provisions of Army Act which deal with the situation, especially section 59 of Pakistan Army Act, 1952.
Learned counsel further contended that under section 59(2) of the Pakistan Army Act, when a person subject to this Act, who commits an offence of murder against a person not subject to this Act or to the Indian Air Force Act, 1932 or the Pakistan Air Force Act, 1953, or to the Pakistan Navy Ordinance, 1961, or of culpable homicide not amounting to murder against such a person or of rape in relation to such a person, shall not be deemed to be guilty of an offence against this Act and shall not be dealt with under this Act unless he commits any of the said offences.-
(a) while on active service, or
(b) at any place outside Pakistan, or
(c) at a frontier post specified by the Federal Government by notification in this behalf.
He submitted that the Army authorities were not required to resist the execution of process issued by the Civil Court. Learned counsel brought to the notice of the Court the procedure laid down in section 94 of the Act, which deals with the situation, where two courts i.e. Ordinary criminal court and court martial have concurrent jurisdiction. According to that section, if both the courts have concurrent jurisdiction, then under rule 168 of Pakistan Army Act Rules, 1954, the Court has to approach the Prescribed Officer under section 94 and 95 of the Act, provided that in cases falling under section 59, in which death has resulted the prescribed officer shall be an officer having power not less than that of an independent brigade or Logistics Area Commander. He submitted that the certificate placed on the record, does not fulfill the requirements of law mentioned above.
5. I have heard the learned counsel for the parties at length. Learned counsel for the petitioner claims bail primarily on statutory ground in view of the case law, referred to above. The contention has force that the Court can grant bail to the under-trial if delay is of such a nature which is unconscionable and not caused due to the act of the accused or any person acting on his behalf.
The perusal of the interim orders shows that delay was caused by the act of the accused party when they moved the higher police officers for transfer of investigation one after the other. The actual delay occurred when on 22-2-1992, the Court summoned Zaheer Ahmad co-accused and real brother of the petitioner to face trial who was found innocent during the investigation. The petitioner undertook the responsibility to produce him in Court and in spite of that undertaking Zaheer Ahmad had not appeared in the Court. The perusal of interim orders dated 29-9-1992, 11-10- 1992, 2-11-1992, 5-12-1992 and 2-1-1993, shows that in spite of issuance of non-bailable warrants, they did not appear in the Court. The contention of the learned counsel for the petitioner is devoid of force that this delay of 267 days cannot be attributed to the petitioner, because the interim orders show that the Court has to adjourn the case either for the non- presence of co-accused of the petitioner or for the non-presence of Zaheer Ahmad co-accused, who was summoned and did not appear in the Court. The perusal of Army Act shows that the Army authority is bound to obey the order of the criminal Courts if the case falls within the ambit of section 59 of the Pakistan Army Act. It appears that the Court has not followed the correct procedure prescribed under sections 59, 94 and 95 read with rule 168 to enforce the attendance of Zaheer Ahmad. If in spite of this legal exercise, Zaheer Ahmad still fails to appear before the Court, then the Court should take appropriate steps for separation of the case of Zaheer Ahmad from the rest of the accused as contemplated under section 512 Cr.P.C., so that the trial of the accused appearing in Court should conclude as expeditiously as possible.
6. In view of the above position, there is no force in this petition which is dismissed.