' The petitioner namely Muhammad Amir alongwith his co-accused is facing trial for the charge under sections 302/324/ 147/148/149, P.P.C. In a case vide F.I.R. No,225, dated 6-10-1997 registered at Police Station Saddar Barooni, Rawalpindi. The petitioner allegedly armed with .222 rifle fired at Sardar Ali and Sajid Hussain who succumbed to the injuries at the spot. The occurrence took place on 6-10-1997 at 9-45 on Chakri Road. Rawalpindi.
2. On the fateful day, Sardar Safdar Ali, the first informant in the company of d Mukhtar Hussain and Masood Ahmad while boarded in a car bearing No,PRP-9136 alongwith Sardar Ali Khan, Sajid Hussain, Qazi Amir and Mst. Rehana Kausor who while boarded in car bearing GLTA-109 which was being driven by Mulazam Hussain were proceeding towards Chakwal via Chakri Road and when at 6-15 a.m. They reached near Rahpur Mour, a car bearing No,4636 Toyota Corola, and a Suzuki carry while overtaking their vehicles stopped the car in which Sardra Ali, and Mst. Rehana Kausor in the company of Muhammad Amir and Sajid Hussain were travelling. The petitioner armed with 222- bore rifle and his co-accused namely Zafar alias Muzaffar armed with 30-bore pistol, Haq Nawaz alias Haqqu armed with 222-rifle, Zafar Iqbal armed with 30-bore pistol, Hafeez, driver of the vehicle, and' Fauji Hafeez armed with 30-bore pistols and an unknown person who was also armed with .30 bore pistol while encircling the vehicle of Sajjad Hussain and Mst. Rehana Kausor directed Mulazam Hussain driver to run away and at the same time while raising, Lalkara attacked on the complainant party. The petitioner fired at Sardar Ali and Sajid Hussain whereas Haq Nawaz Haqqa fired at Mst. Rehana Kausor and Zafar alias Muzaffar also fired at Sajid Hussain. Hafeez driver, Fauji Hafeez and an unknown person while raising Lalkara remained present at the spot. Zafar lqbal fired at Qazi Amir when he made an attempt to run away from the spot. The cause behind the occurrence was the abduction of Mst. Rehana Kausor sister of the petitioner by Sajid Hussain and in consequence thereto a case was registered against Sajid Hussain. And others at Police Station Neela, District Chakwal. On the day of occurrence, Sajid Hussain along with Mst. Rehana Kausor and his companions were proceeding towards Chakwal to approach the Sessions Court for the grant of bail and while they were still in the way to Chakwal through the Chakri Road, were attacked by the accused.
3. The co-accused of the petitioner namely, Hafeez Ahmad and Imran Ashraf were allowed bail by this Court vide order, dated 22-3-2000 and, dated 4-1-2001 in Cr.M.No,143-B of 1999 and in Cr.M.
No,522-B of 2000 respectively.
4. Sardar Safdar Ali complainant has moved Criminal Miscellaneous bearing Diary No,3342 of 2001 for the cancellation of bail granted to Hafeez Ahmad and Imran Ashraf accused by this Court whereas Muhammad Amir, the present petitioner, has moved Criminal Miscellaneous No,408-B of 2001 for the grant of bail inter alia on the following grounds:--
(a) That the petitioner is behind the bars for the last more than three years without trial and consequently he was entitled to the grant of bail on statutory ground by virtue of third proviso to section 497(1), Cr. P. C .
(b) That undoubtedly the petitioner was attributed role of causing fire-arm injuries to Sardar Ali and Sajid Hussain deceased, but for the purpose of grant of bail on statutory ground, his case is not distinguishable to that of his co-accused namely Imran Ashraf and Hafeez Ahmad who have been allowed bail by this Court on statutory ground.
(c) That a period of two years for conclusion of the trial as provided under third proviso to section 497 (1), Cr.P.C. Was completed even before framing of the charge on 14-9-2000 and that the delay before framing of the charge would neither be attributable to the petitioner nor was to be taken into consideration to disentitle the benefit of third proviso to section 497(1), Cr.P.C. And the delay after framing of the charge due to absconsion of Zafar Iqbal co-accused of the petitioner was also not attributable to the petitioner.
(d) That actually Zafar Iqbal was abducted by the complainant party and a report was also lodged to the concerned Police for registration of a criminal case against the complainant party but nothing was done and thus, the absence of Zafar Iqbal at the trial was beyond his control and that neither he was an absconder nor for such reason, the petitioner could be deprived of his statutory right of bail.
(e) That notwithstanding the role played by the petitioner in the occurrence, non-conclusion of the trial within the statutory period would create a right in his favour for grant of bail which cannot be withheld by the Court in its discretion.
' Learned counsel in support of contention has placed reliance on Haji Niaz v. The State (1995 PCr.LJ 1934), Zahid Hussain Shah v. The State (PLD 1995 Supreme Court 49), Sher Ali alias Sheri v. The State (1998 SCM R 190) and Abdur Rashid v. The State (1998 SCM R 897).
5. Learned counsel representing the complainant while strenuously opposing the grant of bail to the petitioner on the statutory ground contended that the delay in the trial was being caused by the defence. He submitted that the order-sheet would show that the P.Ws. Remained present on each date of hearing but their statements could not be recorded on account of non-availability of the learned defence counsel and similarly the defence on one or the other pretext did not allow the trial Court to frame the charge till 14-9-2000. The learned counsel submitted that it is a matter of record that Zafar lqbal accused was absconding and that a sufficient time was consumed in disposal of bail application and the application under section 265-K, Cr.P.C. Moved on behalf of the accused. The learned counsel summed up his arguments with the conclusion (a) that the defence was responsible for the delay in the conclusion of the trial; and (b) that the case of the petitioner on merits is distinguishable to that of Imran Ashraf and Hafeez Ahmad.
6. The perusal of the order-sheets would show that the copies of the .Documents under section 265-K, Cr.P.C. Were distributed on 18-5-1999 and charge was framed on 14-9-2000 i.e, after expiry of the statutory period for conclusion of the trial. This Court while disposing of the bail application of 'Irmo Ashaf, co-accused of the petitioner, on 4-1-2001 made the following observation:- "The perusal of the order-sheet would show that after submission of the Challan, the case remained pending without any progress for the commencement of the trial till 18-5-1999 on which date the copies under section 265-C, Cr.P.C. Were distributed to the accused and thereafter the framing of the charge was delayed till 14-9-2000. The record does not contain any reason for non- supply of copies of the documents under section 265-C, Cr.P.C. Till 18-5-1999 and non-framing of the charge till 14-9-2000.
' The postponement of the distribution of documents and framing of the charge on the ground that the defence counsel was not available was not proper as the presence of the defence counsel at such occasion was neither necessary nor a legal requirement, therefore, there was no justification for the trial Court to postpone the framing of the charge on such ground. It is noticeable that the accused have never made request for postponement of the framing of the charge in absence of their counsel and thus the contention raised by the learned counsel for the complainant that the accused prevented the Court from framing the charge and proceeding with the trial is without any substance. The delay of about three years in the framing of charge and then non-conclusion of trial for another period of about three months after framing of charge is neither exclusively attributable to the present petitioner nor he was as such responsible for the said delay, therefore, despite the adjournments sought by the learned defence counsel after framing of the charge, the petitioner was still entitled to urge the statutory ground for grant of bail. Undoubtedly in exceptional cases in which delay in the conclusion of the trial is caused by the accused or he is found a hardened criminal, the claim of bail on statutory ground can be refused but in the cases which do not fall in such category, the grant of bail on statutory ground can be claimed as of right. This may be pointed out that the petitioner is not directly responsible for causing the murder of Sardar Ali, Mst. Rehana Kausor, Sajid Hussain and Qazi Amir, therefore, the observation made by this Court while refusing the bail to Hafeez, co-accused of the petitioner in Cr. M. No,1143-B of 1999 would not as such create a bar for the petitioner to move this Court for the grant of bail on any ground including the statutory ground. The trial in a criminal case practically commence from the date of distribution of the copies under section 265-C, Cr.P.C., therefore, the delay prior to that, if any, on the part of the accused would not be relevant and it would not be a valid ground to reject the plea of bail on the ground that in absence of defence counsel charge could not be framed. However, the delay, if any, on the part of the accused after the commencement of the trial would definitely be a valid ground to refuse the grant of bail on statutory ground but the adjournments granted by the trial Court in the present case for framing of charge would not be relevant to hold the accused responsible for causing delay in the commencement and conclusion of trial within statutory period.
Since there was no bar for the trial Court to frame the charge in absence of counsel for the accused, therefore, the delay of three years in framing the charge was not explainable and the subsequent delay, if any, even on the part of the petitioner would not be a ground for refusal of bail.
The learned counsel for the petitioner having placed reliance on Sher Ali alias Sheri v. The State (1998 SCM R 190) wherein it was held by the apex Court 'that the bail on statutory ground cannot be defeated on any other ground except the delay mentioned in the relevant clause and grounds provided in 4th proviso to section 497, Cr.P.C.' contends that the petitioner was entitled to the concession of bail on the statutory ground. The learned counsel also relied upon Haji Niaz v. The State (1995 PCr.LJ 1934) and Panjal v. The State (1990 PCr.LJ 2051) in support thereof."
7. It is noticeable that the ground of delay in the conclusion of the trial was considered in the light of the role assigned to the Imran Ashraf in the occurrence. The observation made therein was that the said accused was not attributed any active role and his name was introduced subsequent to the registration of the case, therefore, his case was distinguishable to that of his co-accused. The first bail application (Cr.M.No,1143-B of 1999) moved on behalf of Hafeez Ahmad was dismissed by this Court vide order, dated 21-1-2000 with an observation that the trial was in progress. The said accused was, however, allowed bail by this Court in a subsequent bail application (Criminal Miscellaneous No,143-B of 2001) vide order, dated 22-3-2001 with the observation that his case on merits was not distinguishable to that of Imran Ashraf as the said accused was not attributed any active role except raising of Lalkaras.
8. Zafar lqbal who absconded at the trial having been proceeded against under sections 87/88, Cr.P.C. Has been declared an absconder to be tried separately. Haq Nawaz alias Haqqu was also not in attendance at the trial. The perusal of the order-sheet would show that the statement of the witnesses could not be recorded on 28-9-2000, 14-10-2000 and 28-10-2000 due to non-availability of the defence counsel and moving of a transfer application by the accused. On 28-10-2000 Zafar alias Muzaffar accused was absent and on 18-11-2000 again for the same reason, the case was adjourned. The Superintendent of Jail was issued show-cause notice for non-production of Zafar alias Muzaffar accused and the report submitted by the Jail Authorities revealed that on 18-10- 2000 Zafar Iqbal accused made an escape from the D.H. Hospital, Rawalpindi, from the police custody. Consequently, the case remained pending for the arrest of Zafar Iqbal alias Muzaffar accused and ultimately on completion of process of law, he was declared absconder and his case was separated under section 512, Cr.P.C. On 21-4-2001 by the trial Court. The trial still could not proceed due to non-production of Haq Nawaz alias Haqqu accused from the D.H. Hospital, where he was admitted as an indoor patient. Meanwhile, an application under section 265-K, Cr.P.C. Was moved on behalf of the accused and the case was adjourned without any progress to 5-5-2001, 7- 5-2001, 9-5-2001, 10-5-2001, 14-5-2001 and 19-5-2001 due to non-availability of learned defence counsel. It is stated that the case was fixed for today before the trial Court but was adjourned to 30-5-2001 for recording the statements of the prosecution witnesses.
9. The review of the circumstances under which the trial remained pending without conclusion for the last more than three years would show that the delay was not caused by the prosecution and instead it was either because of the acts and omissions of the accused or unavoidable reasons which would not be attributable to the prosecution or defence and probably was also beyond the control of the trial Court. This is correct that the ground of delay was considered while disposing of the bail application of Hafeez Ahmad and Imran Ashraf, co-accused of the petitioner, but the concession of bail was not extended to them merely on the ground of delay, rather their case on merits was also considered and having found distinguishable to that of the accused who have been attributed effective role of causing fire-arm injuries to the deceased were allowed bail and thus the case against the present petitioner being not at par to them on merits cannot be judged in the light of \the consideration for the grant of bail to the said accused. The perusal of the order- sheet would show that the conclusion of the trial after framing of the charge was delayed due to the defence. The arguments of the learned counsel that the statutory ground for the grant' of bail was matured even before framing of the charge would be of no avail to the petitioner who having the direct motive against the deceased has played major role in the occurrence and consequently notwithstanding the grant of bail to Imran Ashraf and another accused while considering their case on merits along with the delay taken place in the conclusion of the trial, the petitioner would not be entitled to the grant of bail merely for the reasons that the trial was not concluded within the statutory period. The learned counsel for the complainant and the State while placing reliance on Abdur Rashid v. The State 1998 SCM R 897, contended that grant of bail at this stage on any ground to the petitioner may affect the trial. The apex Court has held in the above as under:- "S. 497, Third proviso--- Pre-requisites Factually, if the witnesses are in attendance and the matter is ripe for recording evidence; but defence does not proceed with the case, it may seriously affect the prosecution because on the next date, possibly, for some or the other reason, witnesses who had in fact appeared may not attend. Therefore, if effective hearing is got postponed by the accused or his counsel, then they are bound to face entire risk and such period which may be consumed in procuring presence and examination of those witnesses who earlier appeared in the Court when adjournment was sought on behalf of the accused would be important factor for considering question of bail merely on statutory ground under third proviso to section, 49'-7 Cr.P.C.
' However, bail under 3rd proviso (ibid) can be certainly refused to accused on the ground that the delay regarding conclusion of trial had been caused on account of any act or omission of the accused or any person acting on his behalf. Now adverting to the facts of this case, it is quite apparent that the counsel for the petitioner obtained adjournments on 22-9-1997, 16-10-1997, 29- 10-107, 19-11-1997, 10-121997, 18-12-1997 and 5-1-1998 as per the order-sheet available on the record when prosecution witnesses were in attendance. Therefore, the petitioner is not entitled to avail the benefit of third proviso to section 497, Cr.P.C."
' In this behalf, reliance can also be placed on Muhammad Shabbir v. The State (2000 M LD 12).
10. In nutshell notwithstanding the lapse of a period more than three years since the taking place of the occurrence I, for the aforesaid reasons, do not find the petitioner entitled for the grant of bail on the statutory ground and consequently dismiss this petition with the direction to the trial Court to proceed with the trial day-to-day and conclude the same within a period of two months, failing which the petitioner shall be at liberty to repeat his request for the grant of bail on any ground available to him including the delay. In case the trial is not concluded within the aforesaid period, the learned trial Judge shall submit report to this Court containing the reasons for its non- conclusion.