' Applicant Wasim alias Wizi has sought bail in a case under sections 302/324/34, P.P.C.
2. The bail plea has been raised mainly on the ground of statutory delay in conclusion of the trial, therefore, it is needless to give details of prosecution story but it would suffice to say that in the F.I.R.
It is alleged that Wasim alias Wizi, the applicant directly fired a bullet at Jamil which hit him on head and he fell down. F.I.R. Was lodged by Muhammad Asghar on 31-3-1996 for an offence punishable under section 324/34, P.P.C. But upon death of Jamil the case was converted to offence punishable under sections 302/324/34, P.P.C. In this incident injuries were also sustained by others.
The applicant remained at large while the case proceeded against the co-accused who were acquitted on 24-2-1998. The present applicant was declared absconder but he was apprehended on 12-6-1999. Since the applicant completed two years of continuous detention an application for bail was moved before the trial Court which rejected the same on the ground that the accused has contributed to delay.
3. Learned counsel for applicant contended that absence of counsel for accused on account of his professional engagement on one or two dates would not disentitle the accused from seeking bail on statutory ground when he has completed two years period of continuous detention in jail. He relied on Muhammad Sadiq v. State 1996 PCr.LJ 1440, Muhammad Ishaq v. State 1996 PCr.LJ 1269 and Amir v. State 1991 PCr.LJ 534 and order, dated 11-12-1991 passed by this Court in Criminal Bail Application No,1080 of 1991. Learned State Counsel pointed out that the trial was twice adjourned on account of absence of Advocate for accused although the witnesses were present.
4. On perusal of case diaries of the trial Court it was noted that on 15-1-2000 the witnesses alongwith their counsel as also D.D.A. Were present, the accused persons were also produced from custody but the defence counsel remained absent, therefore, an observation was recorded by the trial Court that the defence counsel are reluctant to appear in the case. Consequently, the accused were directed to suggest name of Advocate for pauper accused. Again on 8-7-2000 the applicant was produced from police custody, the P.Ws. Were in attendance and the D.D.A. Was also present, but the defence counsel failed to appear and at 12-10 noon the Court was constrained to adjourn the matter as there was no intimation from the defence counsel. It was also ordered that notice be issued to accused for making positive arrangements for appearance of the counsel on next date or in the alternative application be filed for appointing an Advocate for pauper accused. It is gathered from both these diaries that no adjournment application was filed by the learned defence counsel nor there was an intimation on his part to justify his absence.
5. In Muhammad Sadiq's case 1996 PCr.LJ 1440, cited by learned counsel for applicant, it was observed that absence of counsel for any genuine reason or adjournment sought by defence counsel cannot be considered against accused. In Muhammad Ishaq's case 1996 PCr.LJ 1269 the main consideration was whether the accused was desperado and dangerous criminal which is not the case in the instant matter. In Amir's case 1991 PCr.LJ 534 it was held by Single Bench of this Court that adjournment on the request of accused within the meaning of section 344, Cr.P.C. Would not disentitle him to bail on the ground of delay. In the unreported judgment cited above the learned counsel for accused had filed his affidavit showing that he was preoccupied in other matters on the crucial dates on which the matter was adjourned.
6. The case-law on the issue, instantly being dealt with, has developed well and the Honourable Supreme Court has, from time to time, discouraged the delaying tactics employed by the accused persons. In Muhammad Younas v. State 1995 SCM R 1087 four adjournments were sought by the accused and bail was declined although he remained in jail for a period of two years in Shouki v.
State 1984 SCM R 613 it was observed that the engagement of Advocate with his professional work was no justification for delaying the trial. The relevant portion is reproduced below:-- "6. The case of two other applicants' viz. Shafi Muhammad, however, stands on a different footing.
We find no force in the contention that merely because the Court granted the adjournment on an application submitted by the accused, the blame cannot be attributed to such an accused for whose benefit the adjournment was granted. The fact that counsel representing the accused is busy with other professional work and is unable to attend the trial of the accused will not ipso facto be construed a justification for delaying the trial. The accused has no doubt right to be represented by the counsel of his choice but if he has chosen a counsel who is frequently busy with other work, he cannot be heard to say that the delay was not occasioned on account of his act or omission.
The law quite clearly embraces in this regard the acts and omissions of other persons acting on behalf of the accused. It is for the counsel for the accused to arrange his cases in such a manner so as to save his client from consequences provided by law in the delay of the trial."
7. The phenomenon of making mathematical calculation and excluding the days for which adjournment was obtained by accused or his counsel in ascertaining the cumulative effect of ultimate delay in conclusion of trial also cannot be accepted as an appropriate methodology.
Reliance in this regard may be placed on Abdur Rashid v. State 1998 SCM R 897. Thus the accused cannot be allowed to claim deduction of a period of two adjournments from the period of his total detention and then ask for grant of bail on the ground that he has remained in jail for an aggregate period of more than two years.
8. In view of the rule laid down by the Honourable Supreme Court in afore-cited cases the Authorities quoted by learned counsel for applicant will have no .Bearing in support of the bail plea.
9. In consequence of the foregoing discussion, I am inclined to hold that the applicant is not entitled to bail on the ground of statutory delay. Nevertheless, while dismissing the application for bail it may be observed that right of trial of an accused is to be protected. He cannot be detained in custody for an indefinite period. The trial Court is, therefore, directed to proceed with the trial expeditiously. Since it was stated at the time of arguments that the trial Court is lying vacant and it is not known when the post will be filled the case is transferred to learned Sessions Judge, Karachi South for trial.