1. ' The applicants/accused are facing trial for offences punishable under sections 302, 201 and 34, P.P.C. And section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
2. ' Briefly stated the relevant facts are that applicants/accused are alleged to have committed sodomy on the deceased a young boy of 15 years and are further alleged to have committed the murder of victim and are alleged to have buried his dead body.
3. ' Mr. Muhammad Azeem Panhwar learned counsel for the applicants has pressed the bail application on the ground of statutory delay only. He has submitted that the applicants were arrested on 1-2-1999 and three adjournments were taken by the accused persons. He has contended that a period of about two months can be excluded from the period of detention for the purpose of calculating the statutory period of two years. According to him the third and fourth provisos to section 497, Cr.P.C. Were omitted with effect from 10-10-2001 and even after exclusion of two months the applicants had remained in detention for a period of about two years and six months before the omission of 3rd and 4th proviso to section 497, Cr.P.C. He has placed reliance on the following judgments in support of his contentions:--
(1) Muhammad Yousaf v. The State 2000 SCMR 79 (2) Mashooq v. The State 2001 PCr.LJ 874 and (3)
4. Wahid Bux v. State 2001 PCr.LJ 1885.
5. ' On the other hand Mr. Abdul Hussain Motivala the learned State counsel and Mr. Madad Ali Shah learned counsel for the complainant, assisting the learned State counsel have vehemently, opposed the bail application. They have stated that learned trial Court has dealt with the question relating to the delay in the disposal of case. They have taken me through the order of learned trial Court rejecting the bail application. The learned trial Court has observed that the benefit of 3rd proviso to section 497, Cr.P.C. Is not available to the accused as they are covered by 4th proviso to the said section. According to the trial Court the accused persons committed murder of a young boy in a very callous, horrible and brutal manner. The trial Court has further observed that accused persons moved several applications from time to time through out the statutory period in order to hamper the proceedings and, therefore, the delay in conclusion of trial shall be attributed to the accused. The learned advocates have submitted that no mathematical calculation should be made for the grant of bail under 3rd proviso to section 497, Cr.P.C. In support of their contention they have placed reliance on the following judgments:--
(1) Hassan v. The State PLD 1996 Karachi 487 (2) Abdul Rashid v. State 1998 SCMR 897.
6. ' Mr. Madad Ali Shah learned counsel for the complainant has further stated that the prosecution witnesses were present in the trial Court but their evidence could not be recorded because the application was submitted on behalf of accused persons for making a reference to the Medical Officer for ascertaining their age on the plea that they are liable to be tried by Juvenile Court. The matter is now fixed on 9th of February for statement of Medical Officer and production of School Certificate. He has further stated that the complainant is prepared to produce all the witnesses on the 9th February 2002 if the accused are prepared to proceed with the case. Mr. Shah has submitted that the delay in trial is being caused by the accused and not by the prosecution, therefore, the accused persons are not entitled for bail.
7. ' I have considered the contentions raised by the advocates for the parties and have gone through the judgments on which reliance has been placed by the learned advocates. I am of the opinion that judgments on which Mr. Panhwar has placed reliance are not attracted to the facts of the present case, as the facts of the cited cases are distinguishable. In the case of Wahid Bux v. State, (Supra) it was observed that the Court has been calling the witnesses but no progress was being made and there was no default on the part of the accused and he has not attributed in any manner to the delay in conclusion of the trial. In case of Mohammad Yousif v. State (Supra) the Honourable Supreme Court did not approve the refusal of bail for the reason that accused caused death with his service rifle. The only reason for rejection of the bail application by the High Court was that the service rifle was given to accused for protection of citizens and not for the commission of crime.
8. ' I am not persuaded to agree with the views of my learned brother Mr. Justice S.A. Sarwana in the case of Mashooq v. State that in the 3rd proviso to section 497, word criminal has been used and not the person, therefore the accused would be presumed to be innocent until he was convicted by the Court. The principle of innocence is applicable for the purpose of general law and until and unless the person is convicted he is not to be treated to have committed the offence but it is not applicable for the purpose of grant of bail, otherwise all the prohibitory provisions in this regard, in the law shall become redundant, superfluous and nugatory. If the view is held that every person is innocent until and unless convicted, therefore he should be released on bail, then there can be no offence for which anybody can be refused bail, and in that event entire criminal law is to be re- written. I am not persuaded to stretch the concept of innocence to the extent, which may do violence to the entire Scheme of Criminal Administration of justice prevailing in this subcontinent for last 150 years. The scheme of criminal law prevailing in the subcontinent, is that notwithstanding, the presumption of innocence in favor of a person who has not been convicted, the bail is not to be granted to a person, charged with the offences which are punishable with heavy punishments and in respect of the offences which are heinous in nature and to the persons who are alleged to be desperate, hardened and dangerous or who are previous convicts. Any system of law which does not keep in view the state of discipline, peace and tranquility as well as the basic purpose of the law and establishment of Government , i,e, protection of life, liberty and property of the citizen is bad to that extent because it militates against the basic human and fundamental rights of the citizen. The balance is always to be struck in the liberty of one person and the fundamental and human rights of the society collectively. I agree with the proposition of my learned brother that till a person is not convicted he is to be presumed to be innocent but I do not agree that this presumption of innocence shall result in grant of bail to the accused charged of committing offences which are heinous in nature.
9. ' I am persuaded to agree with the contention of learned State Counsel and Mr. Madad Ali Shah learned counsel for the complainant that the learned trial Court has already adverted to the question of brutality on the part of the accused persons and the manner in which they are alleged to have committed sodomy on a young boy and thereafter are alleged to have committed his murder and have further attempted to cause dis-appearance of the evidence by burying the victim. I am persuaded to agree that for ascertaining cumulative effect of ultimate delay in disposal of case, it would not be merely mathematical calculation of excluding such time for which adjournment was obtained by accused or his counsel. I respectfully follow the dictum laid down by the Honourable Supreme Court in the case of Abdul Rasheed v. The State 1998 SCMR 897 that bail on the ground of statutory delay is not to be granted and the accused is not entitled for the concession where the adjournments have been sought when prosecution witnesses were in attendance. No doubt the accused persons are within their right to take plea that they are liable to be tried by Juvenile Court but while pursuing this remedy the consequent delay shall be attributed to the accused and they will not be entitled to the concession of bail on the ground of delay in disposal of the case. If any delay is caused in pursuing a remedy at the instance of accused persons then the burden is to be borne by the accused and the prosecution is not to be saddled with the responsibility. No body can claim the fruit of his act by placing the responsibility thereof on the other party.
10. ' For the foregoing reasons the bail application is rejected. Before parting with this order I would like to direct the trial Court that the question of age of the accused persons should be determined on 9-2-2002 without fail and material prosecution witnesses should be examined in the month of February 2002. Syed Madad Ali Shah Advocate for complainant has undertaken to produce all the witnesses other than official witnesses as and when required by the Court.
11. Application rejected.