Liaqat A.I seeks bail in a case registered at Police Station Qila Deedar Singh on 3-4-1994 for offences punishable under section 302/324/34, P.P.C. According to the F.I.R., Liaqat A.I and Muhammad Arif armed with .12 bore guns and their co-accused Ashfaq empty-handed are accused of causing death of complainant's brother Sajjad Ahmad. Liaqat A.I petitioner fired with his gun which hit the deceased on his back as a result whereof he fell down-and later on died.
Muhammad Arif is accused of ineffective firing. The occurrence took place in consequence of a dispute regarding dogs.
2. Ashfaq A.I and Arif A.I co-accused were enlarged on bail by this Court vide orders passed in Criminal Miscellaneous No.3329/B of 1994 and Criminal Miscellaneous No.4279/B of 1994.
3. Learned counsel for the petitioner submits that she does not press for bail to Liaqat A.I on merits.
The bail is sought on the statutory ground that the petitioner is in jail for more than two years without the conclusion of the trial. She has stated that the petitioner was arrested on 13-4-1994 and since then he is in the lock-up and the trial has not yet concluded. Learned counsel has argued that her client is entitled to be enlarged on bail as of right under the third proviso to subsection (1) of section 497, Cr.P.C. According to her, the petitioner became entitled to be enlarged on bail on 12- 4-1996 because delay in conclusion of the trial is not attributable to him, nor is he a hardened criminal with previous history. She has further submitted that the charge was framed by the learned trial Court on 10-4-1996 when the 2 years' statutory period had most expired. In support of her case for grant of bail to the petitioner, the learned counsel has placed reliance on the following case-law:------
(i) Zahid Hussain Shah v. The State PLD 1995 SC 49,
(ii) Muhammad Ashiq v. The State 1996 PCr.LJ 12069.
(iii) Muhammad Sadiq and others v. The State 1996 PC r. LJ 1440.
4. Mr. Inayat Ullah Cheema, learned counsel for the complainant has vehemently opposed the bail application. He has submitted that despite the fact that the petitioner has remained continuously in detention for more than 2 years without the trial having been concluded, he is not entitled to be enlarged on bail because the delay in the conclusion of the trial is attributable to the petitioner's co-accused and hence, he is also vicariously liable for the conduct of his co---accused. Referring to the order-sheet, he has submitted that the learned trial Court had summoned the accused persons on 17-1-1996 for 24-1-1996. On the adjourned date Liaqat A.I petitioner was present in the police custody while Muhammad Arif accused was reported to have been murdered and Shafaqat co-accused was ordered to be served through warrants. On 6-2-1994 the petitioner duly appeared but no report was received with regard to Muhammad Arif. On 18-2-1996 Liaqat A.I and his co- accused Shafaqat were present but the case was again adjourned for want of authentic report with regard to the murder of Arif co-accused. On 6-3-1996 Liaqat and Shafaqat were present.
However, the case was adjourned to 19-3-1996. On this date the learned trial Court was on leave.
On 31-3-1996 the copies were supplied to Liaqat A.I and Shafaqat who were present in Court. On 10- 4-1996 the charge was framed for the first time and the case was adjourned to 6-5-1996. On the adjourned date four prosecution witnesses were in attendance but the case was adjourned because the defence counsel had gone to Lahore. Subsequently, the case was adjourned for next two dates on account of the non-availability of the defence counsel who had gone to Lahore to appear in this Court in other matters. On 30-6-1996 the case had to be adjourned because the petitioner could not be produced from jail on account of the non-availability of police guard due to the elections of the AJK Assembly. Similarly, the case could not be taken up on the next three dates for one reason or the other. The learned counsel has contended that co-accused Shafaqat did not appear on 24-1-1996 on account whereof the case had to be adjourned. Subsequently the defence counsel sought adjournments for his professional engagements in other Courts. Thus, according to him, the delay in the conclusion of the trial is attributable to the petitioner as well and hence he is not entitled to the concession of bail under the third proviso to subsection (1) of section 497, Cr.P.C.
5. The admitted factual position is that the petitioner was arrested on 13-4-1994 and the charge was framed for the first time on 10-4-1996. It is further clear from the order-sheet that the petitioner has been appearing in police custody before the learned trial Court on all dates of hearing except oil 30-6-1996 when he was not produced by the police on account of the non---availability of proper guard.
6. The provisions relating to the grant of bail to an accused person on the ground of delay in the conclusion of the trial, which is usually called the statutory ground, are provided under the third proviso to subsection (1) of section 497, Cr.P.C. This is reproduced below:-- ---.....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 ha, not be 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. "
The Honourable Supreme Court in Nazir Hussain v. Zia-ul-Haq and others 1983 SCMR 772 after considering the effects of the third proviso aforesaid held that grant of bail on the ground of delay in the cases covered by the third proviso to section 497(1), Cr.P.C. No longer remained within the discretion of Court. In the case of Zahid Hussain Shah PLD 195 SC 49 the Honourable Supreme Court had held that the bail is to he granted as of right to an accused person under the third proviso
(ibid) on the ground of delay in the conclusion of the trial, where he is not found responsible for the delay. The relevant finding of the Supreme Court is reproduced below:-- "The right of an accused to be enlarged on bail under the third proviso to section 497(1), Cr.P.C. Is a statutory right which cannot be denied under tire discretionary power of the Court to grant bail. The right of an accused to get bail under the 3rd 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 3rd proviso (ibid) 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 3rd proviso ibid can also be refused by the Court if the case of the accused fell under the 4th proviso to section 497(1), Cr. P. C. "
This Court in Muhammad Ishaq's case 1996 PCr.LJ 1269 allowed the bail to the accused person on the ground of delay in the conclusion of the trial, following the dictum laid down in Zahid Hussain Shah's case.
7. The argument of the learned counsel for the complainant that the petitioner is responsible for the delay in the conclusion of the trial on account of the fact that his co-accused on bail did not appear in Court on one date and the defence counsel has been obtaining adjournments, has been ably countered by Ms. Farzana Shahzad Khan, Advocate by submitting that tire petitioner is not responsible for the conduct of co-accused on bail nor can the adjournments granted by the trial Court to the defence counsel on account of his professional engagements be considered to be a factor for delay in the conclusion of the trial attributable to the petitioner. In support of her submission she has relied on the case of Muhammad Sadiq and others decided by justice Sheikh Ijaz Nisar. His Lordship has held in the precedent case that an accused person who remains continuously in jail for more than 2 years in a murder case without his trial being concluded becomes entitled to the grant of bail as of right. It was further held that conduct of the co-accused or grant of adjournments to the defence counsel do not disentitle such an accused for grant of bail on the statutory ground. The relevant discussion is reproduced below: "The right of the accused to be released on bail under the 3rd proviso to section 497(1), Cr.P.C. Is a statutory right which cannot be denied to him under the discretionary powers of the Court. And the use of word "shall" therein has to be read in its ordinary sense. Learned counsel for the complainant and the State have not been able to show that delay in the conclusion of the trial was caused by the conduct of the present petitioners. As already stated above they cannot be held responsible for the conduct of their co-accused, who are stated to be on bail, nor for the adjournments sought by their counsel on account of his professional engagements. "
8. The case of Muhammad Sadiq relied upon by the learned counsel for the petitioner provides a complete answer to the arguments submitted by the learned counsel for the complainant. So far as Liaqai A.I petitioner is concerned lie has been in jail since 13-4-1994. If his co-accused who were on bail did not appear in Court in pursuance of notices issued, then the petitioner cannot be held responsible for their conduct. Similarly, if the defence counsel on account of his engagements in the professional work has been granted adjournments by the learned trial Court the same cannot be termed as the delay attributable to the petitioner. The bail can be refused to an accused person despite of the fact that he remained in continuous detention for the period mentioned in the 3rd proviso, if the delay in the conclusion of the trial has occasioned by an act or omission of such an accused of any other person acting on his behalf. The bail can also be refused to an accused person if he is a previously convicted offender for an offence punishable with death or life or if in the opinion of the Court he is a hardened, desperate and dangerous criminal or involved in terrorism. In all other circumstances the bail has to be granted as of right to an accused person on theground of delay in the conclusion of the trial.
9. Applying the aforesaid criteria to the facts and circumstances of the present case, the delay in the conclusion of trial cannot be said to be attributable to the petitioner. In fact the continuous period of the petitioner's detention of 2 years expired on 12-4-1996. He became entitled to be released on bail on the aforesaid date. The bail cannot be refused to him on account of the delay in the trial which occurred after that date. However, the delay even after that date is not attributable to the petitioner as already observed. There is Nothing on the record to suggest that the petitioner is a previous convict or he is otherwise a hardened, desperate and dangerous criminal. Nor there are allegations against him for involvement in acts of terrorism. Resultantly, the petitioner is entitled to be enlarged on bail under the third proviso to subsection (1) of section 497, Cr.P.C.
For what has been stated above, the petitioner is allowed bail in the sum of rupees 1,00,000 (Rs. One lac) with two sureties, each in the like amount to the satisfaction of the learned trial Court. It is directed that the learned trial Court shall conclude the trial as expeditiously as possible. If any of the accused persons on bail causes undue hindrance in the conclusion of the trial, the complainant may move the learned trial Court to take action in the matter, in accordance with law.