1. ' By a common order I propose to dispose of Cr.B.As. Nos.279 and 280 of 1996, filed by applicants Haji Javed Ahmed and Qamaruddin in Crime No,69 of 1994 of P.S. ' A' Section, Sukkur, registered for offence under sections 409, 161, 224, 328 P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947, exclusively on the ground of statutory delay in the conclusion of the trial.
2. ' The facts forming of these applications are that complainant Agha Nisar Ahmed SDPO, Sukkur received information that applicant Javed Ahmed Jatoi the then SHO, A Section P.S., Sukkur accompanied by subordinate staff including applicant P.C. Qamaruddin, P.C. Allauddin, P.C.
3. Amanullah, P.C. Sadam, P.C. Ghulam Sarwar, P.C. Shah Zaman, Lady Constable Farzana, Lady Constable Shabana and Lady Constable Zubeda had raided the house of one Iqbal Memon Kathyawari at Miani Road, Sukkur on the night between 22nd and 23rd of May, 1994 and recovered Indian currency notes worth Rs,1,50,00,000 (one crore and fifty lacs) and arrested him and the others and were brought to P.S. Alongwith currency notes. On 24-5-1994 applicant Javed Ahmed registered the case as Crime No,68 of 1994 on behalf of State against said Iqbal and others under sections 156 and 89 of Custom Act showing the recovery of amount of Indian currency of Rs,2,00,000 only by preparing a false Mashirnama. Prosecution case further is that the applicant after receiving bribe of Rs,3,50,000 Pakistan Currency, released Iqbal Ahmed illegally. It is alleged that with the help of his younger brother P.C. Allauddin and applicant P.C. Qamaruddin, he embezzled the remaining Indian Currency worth Rs,1,48,00,000 and thus committed the offence punishable under section 5(2) of the Prevention of Corruption Act (II of 1947) and sections 409, 161, 224, 328, P.P.C. Applicant Jawed Ahmed was arrested on 26-5-1994, whereas applicant Qamaruddin was arrested on 4-6-1994. It is the case of the prosecution that on 31-5-1994 an amount of Rs,2,00,000 Pakistan Currency was recovered from the house of applicant Jawed Ahmed out of the abovementioned amount of illegal gratification.
4. ' The applicants had earlier moved applications for grant of bail on merits before this Court, which were dismissed as withdrawn. Thereafter they moved applications on the ground of statutory delay before the trial Court, which were too dismissed on 17-4-1996. Hence these applications.
5. ' Mr. Jafferi learned counsel for the applicants and Mr. A.G. Shaikh learned Additional A.-G., Sindh for State have been heard at length.
6. ' Mr. Jafferi contends that the applicant Haji Jawed Ahmed was arrested on 26-5-1994 and applicant Qamaruddin was arrested on 4-6-1994 and are in continuous detention and their case is not yet concluded. He argues that charge in the case was framed on 4-9-1994 and P.Ws.
7. Muhammad Ismail and Shah Zaman appeared for the first time before the trial Court on 10-11-1994, on which date P.I. Was not present, therefore, the request of adjournment made by applicants, cannot be considered. He next argues that the case could not proceed mainly because either the applicants were not being produced by the jail authorities or property was not available before the Court. On 1-12-1994 Mr. M.A. Rasheed, Advocate moved an application to call for papers of enquiry conducted by F.I.A. In the matter and to stay further trial and the trial Court passed an order dated 12-12-1995 discharging the attendance of P.Ws finding the request justified. Mr. Jafferi further states that it was for the first time on 2-2-1995 the 164, Cr.P.C. Statements of P.Ws. Were called and on 20- 11-1995 examination-in-chief of P.W. Muhammad Iqbal was reserved on the application of P.I. For want of case property and it was finally in September, the case property was produced before the trial Court, therefore, even if the defence counsel has sought the adjournment yet the case could not have proceeded for the above reasons attributable to the prosecution and applicants can hardly be made to suffer for the above reasons. He further argues that the adjournments sought by the defence counsel on 14-3-1995, 1-8-1995 and 5-10-1995 were only on genuine ground that M/s. Samiullah Qureshi, Ghulam Kadir Jatoi and S. Ali Aslant Jafferi filed their powers for applicants and requested for time to prepare defence, and from 18-1-1996 to 31-7-1996 trial Court was lying vacant. He places his reliance on the case-law reported in 1996 M LD 157, 1995 PCr.LJ 1682 and PLD 1995 SC 49 and submits that the applicants have completed a period of more than 1 year in continuous detention and their case is not yet concluded, therefore, they have earned the ground of enlargement on bail under IIIrd proviso to section 497(1), Cr.P.C.
8. ' On the other hand Mr. A.-G., Shaikh, Additional A.-G. Sindh vahemently opposes the grant of bail and states that it was mainly because of the request made by the applicants' counsel, the case was being adjourned and the prosecution cannot be held responsible for delaying the trial beyond stipulated period. He however, admits that the case property for the first time was produced before the trial Court in September, 1996 as stated by Mr. Akber Ali Arain, PDSP Incharge of the case present in Court. He lastly argues that he undertakes to conclude the trial within 2 months if further time is allowed.
9. ' Admittedly the applicants Haji Jawed Ahmed and Qamaruddin have been arrested by the police in this case on 26-5-1994 and 4-6-1994 respectively and since then they are in continuous detention and their trial is not yet concluded. From the perusal of diaries placed on record the charge seems to have been framed on 4-9-1994 and it was for the first time two P.Ws. Appeared on 10-11-1994 on which irrespective of request made for adjournment by applicant Haji Jawed Ahmed, P.I., too was not present, therefore, applicants cannot be said to be wholly and solely responsible for seeking the adjournment. Again on 1-12-1994 though P.Ws. Were present but Mr. M.A.
10. Rasheed, Advocate moved an application for calling the record of investigation conducted by FIA alongwith a further request to stay the further proceedings and his request was acceded to and the attendance of witnesses was discharged. On 2-2-1995 it was for the first time that Court called 164, Cr.P.C. Statements of P.Ws. Muhammad Haroon and Muhammad Iqbal, which fact shows that by this time the trial was immature. Thereafter on many dates either applicants were not produced from jail custody or P.Ws. Were not present. Only on 3 dates viz. 14-3-1995, 1-8-1995 and 5-10-1995, the request for adjournment was made by M/s. Samiullah Qureshi, Ghulam Kadir Jatoi and S.Ali Salam Jafferi, Advocates who filed their powers in the matter respectively on the ground to prepare the defence. Apparently the trial was immature and could not proceed for the reasons that it was for the first time during the September, 1996 the case property was produced by the prosecution before the trial Court which fact was admitted by Mr. Akbar Ali Arain, PDSP conducting the case on behalf of State before the trial Court. This fact is further confirmed from the diary dated 20-11-1995 on which date examination-in-chief of P.W. Iqbal was reserved for want of property. In the case of Amir v. The State 1991 PCr.LJ 534, this Court has held that adjournment can be sought by or on behalf of accused and same should be granted for valid reasons and any legitimate reasons for an adjournment will not be a bar to invoking a proviso. In this citation it is further held that accused would not be penalized due to illness of his counsel or his preoccupation in superior Courts. Here in this case the ground of adjournment sought by the counsel too was genuine. Irrespective of this in my opinion trial was immature till September, 1996, the property was for the first time produced before the trial Court, therefore adjournments if obtained on behalf of the applicants before this date cannot be counted towards causing delay in the disposal of the case, as even otherwise, the case could not have proceeded for the reasons attributable to the prosecution. The none of the offence mentioned in this case is punishable with death, therefore, there was absolutely no bar for the trial Court to proceed with the case even if the counsel for the applicants was not present. This bar is only in the cases punishable with death where if the accused is not being represented by the counsel as pauper advocate on the State expenses shall be provided to him.
11. In these above circumstances of the case the trial Court is equally responsible for delaying the proceedings. When it becomes apparent that delay in the conclusion of trial has not been occasioned by the accused alone but the prosecution and Court are also equally responsible, the benefit of which must go in favour of accused.
12. ' The essential conditions to be fulfilled by an undertrial prisoner under IIIrd proviso to subsection (1) of section 497, Cr.P.C. Are that he must have been in detention for the specified period pending his trial and that delay in the finalization of the trial was not attributable to him. If these conditions are fulfilled and his case is not covered under IVth proviso to subsection (1) of section 497, Cr.P.C., he becomes entitled for grant of bail on the ground of statutory delay. In the present case applicants have completed more than 2-1/2 years in continuous detention and their trial is not yet concluded so much so that the examination-in-chief of P.W. Iqbal was reserved on 20-11-1995 for want of property which still continuous and is not yet finalized. The contention of learned Additional A.-G.
13. That he undertakes to conclude trial within 2 months is not possible as according to the applicants' counsel there are in all 12 witnesses showing in the case and the final conclusion of the trial will take sufficient time. The intention of the Legislature to introduce IIIrd proviso to subsection (1) of section 497, Cr.P.C. Is not to keep the prisoners in custody for indefinite period as undertrial prisoner.
14. IIIrd proviso to subsection (i) of section 497, Cr.P.C. Is introduced by the Legislature with the intention not to keep undertrial prisoner is custody for an indefinite period and to curtail the protracted trials. Even before coming in existence of above provision of law superior Courts consider an inordinate delay in the disposal of the case a valid reason for the grant of bail.
15. ' In the case of Qaiser Mahmood v. The State 1996 M LD 157 Lahore High Court granted bail on statutory ground to the accused though he had obtained adjournments in terms of time amounted to 4 months and 12 days. It is further held in the above citation that if the above period of delay in conclusion of the trial is deducted from the statutory period of 2 years, then the remaining period of 21 months and 7 days brings his case within the ambit of IIIrd proviso to subsection (1) of section 497, Cr.P.C.
16. In the case of Shahbaz and another v. The State 1995 PCr.LJ 1682 while allowing bail to the accused it has held that even if the defence counsel had sought the adjournments and yet if the case could not have proceeded for the reasons attributable to the prosecution, accused could not be made to suffer for such reasons. It is also held in the above situation that it is the duty of the Court to consider the cumulative effect of adjournments being sought in the matter and find out the root cause of the delay and should not feel content merely with probing, into the matter as to which of the parties is seeking adjournment.
17. ' In the last-referred case of Zahid Hussain Shah v. The State PLD 1995 SC 49, Honourable Supreme Court has held that the right of an accused to be enlarged on bail under the IIIrd proviso to section 497(1), Cr.P.C. Is a statutory right which cannot be denied under the discretionary power of the Court to grant bail. The right of an accused to get bail under the IIIrd proviso of section 497(1), Cr.P.C. Is not left to the discretion of the Court but is controlled by that provision. The bail under the IIIrd proviso to section 497(1), Cr.P.C. Can be refused to an accused by the Court only on the ground that the delay in the conclusion of the trial had occasioned on account of any act or omission of the accused or any other person acting on his behalf. The bail under the IIIrd. Proviso to section 497(1), Cr.P.C. Can also be refused by the Court if the case of the accused fell under the IVth proviso to section 497(1), Cr.P.C. In all other cases the Court must grant bail.
18. In view of the above discussed legal position, I allow these bail applications and grant bail to the applicants. They may be .Released on furnishing two sureties each in the sum of Rs,2,50,000 (Rupees two lacs fifty thousand only) and P.R. Bond in the like amount to the satisfaction of the trial Court.