1. ' The applicant/accused has filed this bail application. The brief facts of the case are that Deputy Director, F.I.A., C.B.C., Karachi, received a written complaint from Mr. Ghulam Muhammad, Vice- President, and Zonal Chief, Habib Bank Ltd., Hyderabad, and the same was incorporated and treated as F.I.R. Contents of which are as follows:-- "Mr. Javed Akhtar Junejo son of Abdul Qadir Junejo is an employee of the Bank and he is posted at Indus Gas Company Branch of H.B.L., Hyderabad as Cashier. The duty assigned to the above said person besides duties of Cashier was posting of the Cheques/Vouchers etc. In the books of the accounts of the Bank, which included ledgers and balancing of the same. Recently the abovesaid person was transferred from the said branch to Zonal Office, Hyderabad vide Transfer Order.
2. ' It may be further added that accused gave false credit to P.L.S. Account No,1512 of Sikandar Ali Jatoi and P.L.S. Account No,1800 of Muhammad Nafees of Rs.4,00,000 and of Rs.1,00,000 respectively and in order to cover up this false credit he gave false debit to 'account No,CD-100 of the Sui Southern Gas Company Limited Muhammad Nafees has withdrawn the said amount of Rs.1 lac.
3. ' It is further submitted that the examination and the checking of books of the accounts and vouchers of the said branch where the accused was posted is in progress to find out the further cases of misappropriation committed by the said accused with connivance of others, which will be submitted on the completion of the investigation by the Bank's Officials in due course of time.
4. ' From the above facts it is clear that accused has committed fraud, forgery and misappropriation and criminal breach of trust with the connivance of the other staff members and parties shown above and which may be further unearthed during the investigation."
5. ' After usual investigation the applicant/accused was charge-sheeted before the Court where his bail application was rejected by the learned Special Judge (Customs and Taxation), Karachi, vide order, dated 4-10-1995. I have heard Mr. Sardar. Muhainmad Ishaque, learned counsel for the applicant, who has pressed only ground of statutory delay on behalf of the applicant. According to the learned counsel, the applicant/accused is in jail custody since June, 1993 and the trial has not yet concluded and the proviso 3 of section 497, Cr.P.C. Is applicable to his case. The relevant grounds urged by the learned counsel are as follows:--
(1) That the accused is in judicial custody since June, 1993 and the trial has not yet concluded and the proviso 3 of section 497, Cr.P.C. Is applicable in the present case.
(2) That the custody of the applicant is continuous and no adjournment was sought on his behalf and further the delay in the trial cannot' be attributed to the applicant. Diary sheet is filed herewith for the perusal of this Honorable Court.
(3) That the learned trial Court termed the applicant as desperate character and declined the bail application. That the finding of the trial Court is not in consonance of the law laid down by the Supreme Court of Pakistan as held in 1993 SCMR page 525.
(4) That the applicant was never convicted and there is no conviction on record and the mere pendency of the cases cannot be termed as hardened or desperate character and the discretion in favor of the applicant on the point of delay may be exercised.
6. ' Learned counsel has cited the following cases:--
(1) Sultan Pervaiz v. The State PLD 1991 Pesh. 174,
(2) Mounder and others v. The State 1988 SCMR 1113,
(3) Muhammad Hashirn v. Nabi Dad and another PLD 1987 Quetta 194,
(4) Jalal v. Allahyar and another 1993 SCMR 525,
(5) Rustam v. The State PLD 1986 Kar. 561,
(6) Aijaz Ahmad v. Tasawar Haider and another 1988 PCr.L1 1409,
(7) Rahim Bux and others v. The State PLD 1986 Kar. 224
(8) Jaggat Ram v. The State 1995 PSC (Crl.) 955.
7. ' I have also heard Mr. M. Roshan Eassani, learned D.A.-G. For the State, who has alleged that the delay whatever is not on the part of the prosecution but the accused/applicant is responsible for such delay and in view of the provisions of section 497(3) and (4) which are as follows:-- "Provided further that the Court shall except where it is of opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf or in exercise of any right or privilege under any law for the time being in force, direct that any person shall be released on bail--
(a) who, being accused of any offence not punishable with death, has been detained for such offence for a continuous period exceeding one year and whose trial for such offence has not concluded: or.
(b) 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 such offence has not concluded: ' Provided further that the provisions of the third proviso to this subsection shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal or involved in terrorism."
8. ' Mr. M. Roshan Easani, learned D.A.-G., has drawn my attention to the case diaries filed by the learned counsel for the applicant/accused. It would be very much pertinent to reproduce here some of the relevant case diaries which are as under:-- "21-3-1994 Mr. Israr Ali, P.P. For the State present. Accused present in custody. .Mr. Hakim Ali Siddiqui, Advocate has filed power on behalf of the complainant i,e, H.B.L. Along with application for adjournment. Order passed on the application. Application granted.
9. ' Complainant Ghulam Muhammad is present but he was not examined on the request of accused who has submitted an application for adjournment on the ground that he will engage another counsel to represent himself. By consent and on the request of Mr. Hakim Ali Siddiqui, the case is adjourned to 31-3-1994. Complainant is directed to appear on the next date along with the relevant documents:"
10. ' 31-3-1994 Mr. Israr Ali, P.P. For the State present, assisted by Mr. Hakim Ali Siddiqui, Advocate for complainant/H.B.L.
11. "Accused Jawaid Akhtar Junejo present in custody. He has submitted an application that he will not in a Position to engage an advocate to represent him.
12. ' Deposition of P.W. 1 Ghulam Muhammad (Exh.4) partly recorded. He has produced documents Exh.4/1 to Exh.4/4 in his evidence. Further examination-in-chief is reserved for want of time.
13. Adjourned to 7-4-1994 for further evidence. P.W.1 is directed to be present on the next date.
14. ' Accused remanded to custody to be produced on next date." "7-4-1994 Mr. Israr Ali, P.P. For the State present. Accused Jawaid ' ' Aichtar Junejo present in custody.
15. ' Complainant Ghulam Muhammad is present. He was examined in other connected cases which are also fixed today. Accused remanded to custody to be produced on 21-4-1994?" 21-4-1994 Mr. Israr Ali, P.P. For the State present, assisted by Mr. Hakim Ali Siddiqui, Advocate for the Bank.
16. Accused Javed Akhtar Junejo present in custody alongwith his counsel Mr. Shoib Shibli, Advocate. ,Complainant Ghulam Muhammad is present but he was not examined as. Mr. Shoib Shibli, Advocate appearing on behalf of accused request for adjournment. He has submitted an application for the same purpose. By consent the case is adjourned to 28-4-1994, for further examination-inchief of complainant Ghulam Muhammad. Complainant is directed to attend.
17. ' 27-6-1994 Mr. Israr Ali, P.P. For the State present.
18. ' Mr. Hakim Ali Siddiqui, Advocate for H.B.L. Present. Mr. Shoib Shibli, Advocate for accused present.
19. ' Accused Jawaid Akhtar Junejo, present in custody.
20. ' Heard three applications filed by accused dated 21-3-1994, 28-4-1994 and 19-5-1994. The accused was not able to point out any provision of law through which this Court is competent to implicate the prosecution witness as co-accused in this case. In the circumstances these applications are rejected. However, accused will be at liberty to file any private complaint before this Court or to adopt any other legal proceedings as available in law.
21. ' The examination-in-chief of P.W.1 Ghulam Muhammad is completed. Cross-examination is reserved on the request of Mr. Shoib Shibli, Advocate and with consent of P.P. And Mr. Hakim Ali Siddiqui.
22. ' To come up on 6-7-1994 for cross-examination of P.W.1. Witness directed to attend.
23. ' Accused remanded to custody to be produced on the next date of hearing.
24. ' 6-7-1994 Mr. Israr Ali, P.P. For the State.
25. ' Mr. Hakim Ali Siddiqui, Advocate for H.B.L.
26. ' Mr. Shoib Shibli, .Advocate for accused called absent.
27. ' Accused produced by jail authorities.
28. "P.W.1 Ghulam Muhammad is present in the Court and is available for cross-examination. Accused has filed an application withdrawing Power/Vakalatnama of his counsel and states that he will cross-examine the P.W. By himself. He has also prayed for supply of certified copies. Office is directed to supply him all the copies as prayed by accused on payment of usual costs.
29. ' In the interest of justice and with the consent of P.P. And Mr. Hakim Ali Siddiqui, Advocate the case is adjourned to 13-7_1 n 30-6-1994 an application was received in the office of this Court from accused Javed Akhtar Junejo. From the contents of application it appears that the accused has raised plea of acquittal under section 249-A, Cr.P.C. On the last date of hearing I directed Mr. Shoaib Shibly, Advocate who at that time was representing accused that he should file application in proper form on behalf of his client/accused if he requires any relief from this Court, but no such application has been filed. It appears from the conduct of accused that he is in habit of sending different letters from Jail to this Court. It is premature stage to consider plea of acquittal under section 249-A, Cr.P.C. At this stage. Such plea will be considered after some prosecution evidence is recorded. The accused has been verbally informed of this order."
30. ' 13-7-1994 Mr. Israr Ali, P.P. For the State.
31. ' Mr. Hakim Ali Siddiqui, Advocate for H.B.L. Accused produced by Jail Authorities.
32. ' P.W.1 namely Ghulam Muhammad is present. He has been examined in Cases Nos.6 of 1994 and 5 of 1994. For want of time the cross-examination of P.W.2 is reserved till 1-8-1994. Accused remanded to jail custody to be produced on next date of hearing.
33. ' 1-8-1994 Mr. Israr Ali, P.P. For the State.
34. ' Mr. Hakim Ali Siddiqui, Advocate for H:B.L. Accused produced by Jail Authorities.
35. ' Cross-examination of P.W.1 Ghulam Muhammad partly recorded. His further cross-examination is reserved for the prosecution of the list of Bank officials who was working in the concerned Branch at the relevant time. The case is adjourned to 11-8-1994, for further cross-examination of P. W.1.
36. Accused is remanded to custody to be produced on the next date of hearing.
37. ' 15-9-1994 Mr. Israr Ali, P.P. For the State.
38. ' Mr. Hakim Ali Siddiqui, Advocate for H.B.L.
39. ' Saleema Nasiruddin, Advocate for accused.
40. ' Accused Javed Akhtar Junejo, produced by Jail Authorities.
41. "Process-server P.C. Shaukat Ali of F.I.A. Crime, Hyderabad has filed his report about service of notice on Panah Ali Shah and Arif Notice was served on Panah Ali Shah who has appeared in response to the same. About Arif Dal it has been reported that he was on leave till 13-9-1994. On 14- 9-1994 process-server again went to the Bank for service of notice but he was informed that Aril Dal has not resumed his office till 14-9-1994. Repeat notice to Arif Dal through D.D. Crime Circle, F.I.A., Hyderabad Sindh. P.Ws.2 and 3 namely Sardar Ahmed and lqbal Haroon are present. Mrs. Salima Nasiruddin, Advocate is present. In the interest of justice hearing of this case is adjourned and these witnesses are bound down for next date. Panah Ali Shah, the then Manager of H.B.L. Has requested time to engage some counsel to enable him to answer the queries raised by this Court.
42. The case is adjourned to 28-8-1994. To come up on 28-9-1994.
43. ' Late Diary: Mrs. Salima Nasiruddin, Advocate has filed application seeking permission to withdraw her Vakalatnama. Accused Javed Junejo has also made identical prayer. Mrs. Salima Nasiruddin, Advocate is hereby allowed to withdraw her Vakalatnama. Such application is brought on record as ' Exh.5. To come up on 28-9-1994, for further proceedings as order earlier."
44. ' 28-9-1994 Mr. Israr Ali, P.P. For the State present.
45. ' Mr. Mansoorul Haq Ansari, Advocate, holding brief for Mr. Hakim Ali Siddiqui, Advocate for Habib Bank Ltd.
46. ' Accused Jawaid Akhtar Junejo produced by Jail Authorities.
47. ' Two prosecution witnesses namely: ' Muhammad Iqbal Manager, Indus Gas Branch, H.B.L., Hyderabad and Sardar Khan, officer, Zonal Office, Hyderabad are present. In pursuance of notice issued by this Court vide order, dated 28-8- 1994 Panah Ali Shah, the then Manager and Arif Dal the then Cashier of Habib Bank Ltd., Indus Gas Company Branch are present and have filed applications that the time be granted to them for engaging some Advocate. Application allowed and last chance is granted to them to engage any legal counsel/Advocate."
48. ' On 21-9-1994 and 22-9-1994 two different letters were received in this Court addressed by accused Jawaid Akhtar Junejo. Both these letters were confronted with the accused who admitted to have written them on 15-9-1994. Letter received on 21-9-1994. In this letter besides serious allegations attributed towards this Court, he has also written as follows:--{{URDU TEXT}} ' The above-quoted portion was again read over to accused in open Court who admitted to have written the same and in acknowledgement of the same again signed on the right edge of the said letter on page 2.
49. ' In another letter which was received in this Court on 22-9-1994 besidts several contemptuous remarks about this Court, he has levelled the following allegations:-{{URDU TEXT}} ' Again the above said contents of the letters were read over to accused in open Court who admitted to have written such remarks about the Court and in acknowledgment of the same has put his signature on the right side of the pages Nos.3 and 4 in open Court and in presence of both the learned counsel.
50. ' Both these letters be kept on record in Case No,30 of 1993 and be placed along with the other cases which are fixed on 29-9-1994.
51. ' It is a well-settled law that 'justice should not only be done but it seems to have been done'. From the above-noted remarks of accused it appears that he is not satisfied from the way his trial is being' conducted. Therefore, it will not be fair and just to proceed with this case any further. In view of these circumstances, a reference be made to the Ministry of Law, Government of Pakistan Islamabad for constituting a separate Special Court for trial of this case.
52. ' As far as the question of contempt of Court is concerned, I am leaving this matter open. These two letters may be placed before the other Presiding Officer, if constituted by the Federal Government.
53. ' Both the prosecution witnesses who are present in this Court are discharged for the time being.
54. ' To come up on 13-10-1994. Accused remanded to custody to be produced on the next date.
55. ' 10-11-1994 Mr. Israr Ali, P.P. For the State.
56. ' Mr. Hakim Ali Siddiqui, Advocate for H.B.L.
57. ' Accused Javed Akhtar Junejo produced by the Jail Authorities.
58. ' A notification bearing No,F.7(2), 94-A-III, dated 27th October, 1994, received from Ministry of Law, Justice and Parliamentary Affairs (Law and Justice Division), Islamabad regarding transfer of this case to the Special Court consisting of Mr. Syed Hassan Shah Bukhari, Special Judge (Customs, Taxation and Anti-Smuggling), Karachi. Let the record and proceedings be sent to the concerned Court. The Superintendent Central Prison, Karachi be directed to produced accused Jawaid Akhtar Junejo on the next date of hearing i,e, 17-11-1994.
59. ' The accused present in custody is accordingly informed.
60. ' 6-4-1995 A.D. F.I.A. Mr. Israr Ali is present. Accused is present in custody. Counsel for the Bank is present.
61. ' P.W. Iqbal is present. Issue reference to Ministry of Law for transfer of the-case. Put off to 19-4-1995.
62. ' 30-8-1995 A.D. F.1.A. Israr Ali is present.
63. ' Accused is present in custody.
64. ' P.W.2 Muhammad Iqbal is recalled and further cross-examined. Accused made an application for recalling P.W.1 Ghulam Muhammad. Notice to prosecutor. Accused is also pressing for bail application. Both applications are to be heard on 4-9-1995. Put off to 4-9-1995.
65. ' 14-9-1995 A.D. F.I.A. Mr. Israr Ali is present. Accused is present in custody.
66. ' Bail application and application under section 540, Cr.P.C. Are heard. Call Investigating Officer.
67. Issue letter to Superintendent Jail and Investigating Officer about the previous conduct of accused.
68. Adjourned to 21-9-1995."
69. From the above material it is clear that the trial could not be concluded on the ground of delaying tactics which were adopted by the applicant/accused himself on each date of hearing when the P.W. Was present, parties were present, either the application was submitted by the applicant/accused himself or duly authorised person acting on his behalf in the Court with the result that the trial PC, LI could not be concluded with no fault of the prosecution at all. Prima facie, it appears keeping in view the proviso of statutory delay the applicant/accused has taken advantage of it and tried his best so that the trial could not be concluded. On the other hand he agitated the ground of delay for getting himself released from the jail. The authorities cited by the learned counsel for the applicant/accused are quite different and distinguishable from the facts of the present case. In the cases cited by the learned 'counsel the delay whatever which occasioned in the cases was not on the part of the applicant/accused but on the part of the prosecution and applicants/accused were not desperate dangerous and hardened criminals in the above cases because no such material was produced by the prosecution in those cases. Whereas herein this case right from the submission of the challan against the applicant/accused who started moving applications for adjournments and also false and frivolous applications against the Presiding Judge for getting his case transferred with the result that the trial could not be concluded. In none of the cases referred hereinabove the applicants/accused were held responsible for delay whereas in this case as I have already pointed out whatever the delay has occasioned that is on the part of the applicant/accused or the person acting on his behalf. The provisions of proviso 3 of section 497, Cr.P.C. Referred hereinabove clearly comes in the way of the applicant/accused and I am of the firm opinion that the applicant/accused is not entitled to be released on bail on the ground of statutory delay. After hearing the learned counsel for the parties the application was dismissed on 1-4-1996 and these are the reasons for the same.