1. By this order I intend to dispose of Criminal Bail Application, filed on behalf of the applicant Mohib Syed, arising out of F.I.R. No.184 of 1997, registered under section 302, P.P.C. With Saeedabad Police Station, Karachi (West). The bail plea filed on behalf of the applicant was initially dismissed by the learned IInd Additional Sessions Judge, Karachi (West) and thereafter, by this Court it was also dismissed vide order, dated 12-9-2000. While dismissing the bail plea of the applicant it was observed by this Court as under:-- ' Under such circumstances, this criminal bail application is disposed of as not pressed. The trial Court is, however, directed to proceed with the matter expeditiously and conclude the trial as early as possible preferably within a period of three months. The trial Court will ensure every possible efforts to secure the attendance of the witnesses and record their evidence. The applicant will be at liberty to repeat the bail application if the circumstances so warrant, which will be disposed of according to law."
1. Subsequently, a second bail application was moved before the learned trial Court and that too received the same fate. Thereafter, counsel for the applicant has filed present application before this Court for bail. It would be pertinent to mention that both applications made before this Court were on the ground of statutory delay.
2. The prosecution story as unfolded in the F.I.R. Was that on 28-7-1997 at about 7-30 a.m.
Complainant Bakht Amin Pathan appeared at Saeedabad Police Station, Karachi (West) and lodged an F.I.R. Alleging therein that the complainant lives alongwith his kith and kin at the above address for the last 10 years. He was driver by profession. On the fateful night at about 2-00 a.m. As the complainant was present in his house his nephew's son namely Sher Afzal came running and informed that Mohib Syed (present applicant), who happened to be the tenant of that house came there and tried to forcibly enter into the house. At that moment Syed Amin came and found Mohib Syed to be present there. Syed Amin stopped him from going to the house of Mst. Imtiaz Bibi, which resulted in fight between them. The complainant further stated that Mohib Syed, who was armed with a folding knife, attacked Syed Amin by giving him knife blows on his chest, as a result whereof, he fell down due to knife injuries. It is further alleged that Amjad, Hanif, Noor Jamal and others were also present at the spot and they also took part in the fight as a consequence whereof Mohib Syed (applicant herein) sustained injuries. Due to intervention of the complainant, accused was rescued.
On further enquiry Amjad disclosed that on the fateful night as he was standing alongwith Noor Khan and Hanif in an open ground in front of the street, Syed Amin was found standing near the house of his sister Mst. Imtiaz Bibi, when Mohib Syed came and broke opened the door of the house of Mst. Imtiaz Bibi, resulting in an scuffle between Syed Amin and Mohib Syed. The complainant Noor Khan and Amjad snatched knife from Mohib Syed, resulting in injuries to both, the applicant and the complainant. Syed Amin, Noor Din and Mohib Syed were removed to the Civil Hospital, Karachi, for first aid where Syed Amin succumbed to the injuries. Investigation followed and in due course the applicant was sent up to stand trial before the learned find Additional Sessions Judge, Karachi (West).
4. I have heard learned counsel for the respective parties and perused the material placed on record. It has been argued by the learned counsel for the applicant that he has not agitated the bail application on merits but only on the ground of statutory delay. His bail applications were dismissed by the learned trial Court twice before and thereafter, the first application filed before this Court was disposed of with the direction that the trial of the case may be completed within a period of three months and if the case is not decided within the stipulated time, the applicant would be at liberty to repeat his bail application. It has been stated that time for completion of trial was further extended by this Court for one month. Following the direction he has repeated his second bail application before this Court. It has also been argued by the learned counsel for the applicant that on ten occasions the adjournments were sought, i.e. 24-12-1997, 3-7-1998, 18-7-1998, 29-7-1998, 17-2-1999, 9-3-1999, 24-3-1999, 5-5-1999, 30-7-1999 and 5-8-1999 and the amount of delay caused by these adjournments comes to 154 days. If this period is deducted from the total period i.e. 3 years and 8 months, the applicant has completed more than 2 years and as such he is entitled to bail. It is further contended that according to record the applicant is not involved in any other case excepting the case in hand. The report further shows that neither he is a previous convict nor desperate, dangerous or hardened criminal within the meaning of fourth proviso to section 497(1), Cr.P.C. It has also been argued that from the facts and circumstances of the case in hand, the applicant cannot be termed as desperate, dangerous and/or hardened criminal and in this background he requests that bail may be granted to the applicant.
5. In support of his contentions, learned counsel for the applicant has relied upon the following authorities:-
(a) Jan Muhammad Brohi and others v. The State 1996 PCr.LJ 863,
(b) Abdul Hameed v. The State 1999 M LD 1333,
(c) Sher Ali alias Sheri v. The State 1998 SCM R 190,
(d) Jadeed Gul v. The State 1998 SCM R 1124,
(e) Ashok v. The State 1997 SCM R 436,
(f) Muhammad Afzal and another v. The State NLR 1982 SCJ 199 and
(f) Muhammad Aslam v. The State 1999 SCM R 2147.
6. Learned counsel for the State Mr. Sharafat Ali Khan, has opposed the grant of bail on the ground that substantial progress has been made by the trial Court in the case inasmuch as the four witnesses have been examined and there only remain three eye-witnesses, which are to be examined. He further states that after the direction"by this Court prosecution cannot be blamed for prolonging the trial as the Court trying this case was lying vacant.
7. I have given my anxious thought to the arguments of the respective parties and have also perused the record, which shows that as per case diary submitted by the learned counsel for the applicant, the adjournments were sought almost on 10 occasions and the delay calculated appears to be 154 days, which shows that the defence was responsible for causing delay in finalisation of the trial. The intention of the law is to see that whether the finalisation of the trial has taken place on account of the delay caused by the defence. In a case reported as Akhtar Abbas v.
The State PLD 1982 SC 424, adjournments were sought on eight occasions and it was observed that all that is necessary to be seen whether the delay in finalisation of the trial has, in any manner, been delayed by an act or omission on the part of the prosecution or defence. In the case in hand, the delay was partly attributed to the applicant, which was clear fromThe order-sheet of the trial Court. Again in another case of Muhammad Younus v. The State 1995 SCM R 1087, it was held that the defence on four occasions had requested for adjournment and the accused, therefore, was not entitled to concession of bail. All the citations referred by the learned counsel at the Bar has no force as the facts and circumstances of the case cited are distinguishable from the case in hand.
Keeping in view the principle as laid down in the above authorities the bail application stands dismissed.
8. However, the learned trial Court is directed to finalise the trial of case more expeditiously. Since it has been pinpointed earlier by the learned counsel for the applicant that Court of the learned IInd Additional Sessions Judge, Karachi (West) is lying vacant and for him it is not possible to conduct the proceedings of the case. In the circumstances, the learned Sessions Judge, .Karachi (West) is directed to withdraw the case bearing Sessions Case No.571 of 1991 from the Court of learned IInd Additional Sessions Judge, Karachi (West) and may try himself or transfer the same to any other Additional Sessions Judge, having jurisdiction, for disposal according to law.
9. A copy of this order be also forwarded to the learned Sessions Judge, Karachi (West) for information and necessary compliance.