1. ' This order will dispose of the bail application filed by the applicant Hussain Ahmed involved in Sessions Case No,180 of 2002 pending in the Court of learned Additional Sessions Judge, Kambar.
2. ' The facts giving rise to the present application are that there was dispute between the complainant party and the applicant over an allegation that sister of the applicant was declared Kari with deceased Manzoor, cousin of the complainant. In this background, it is alleged that on 26- 3-2000 at 6-00 p.m. The complainant alongwith deceased Manzoor, P.Ws. Khalil Ahmed, Abdul Nabi were present in the street, when the present applicant Hussain Ahmed and co-accused Fazal Muhammad armed with pistols., co-accused Abdul Nabi and Muhammad armed with guns and co-accused Shamsuddin empty-handed came there. Accused Shamsuddin instigated the other co-accused not to spare Manzoor as he was Karo, therefore, on the said instigation the applicant fired from his pistol at Manzoor Ahmed, which hit him and then co-accused Fazal Muhammad also fired pistol shot at the deceased and he fell down on the ground. Thereafter the accused who were armed with guns gave Hakals to P.Ws. Not to come near them, therefore, the complainant party did not proceed further and then the accused ran away. The complainant went to the deceased where he found him lying injured. He was taken to hospital, but on the way he died. Thereafter the complainant went to police station and lodged the report at 8-00 p.m. On the same day. The police submitted the challan in the Court against the present applicant who was shown in custody whereas another accused namely Ali Hyder was shown as absconder and co-accused Fazal Muhammad, Shamasuddin, Abdul Nabi and Muhammad were shown in Column No,2, as they were released by the police. Two bail applications were moved before the trial Court on merits, but the same were dismissed. A third bail application, on the ground of delay in the disposal of the case was moved before the trial Court, which was also dismissed on 24-6-2002, hence the present application.
3. ' The learned Advocate for the applicant has stated that the co-accused Fazal Muhammad, who was let off by the police has been granted bail by the trial Court, as he was joined as an accused in the case and that the case of the present applicant is similar to that of co-accused Fazal Muhammad, therefore, on the rule of consistency the applicant is entitled for the concession of bail.
4. He has further stated that the judicial confession of the applicant was recorded after 9 days of his arrest and that too under pressure, therefore, the said confession has no value. He has relied upon Ali Akbar v. State 1988 M LD 186 and Mst. Maryam v. State PLD 1961 Kar.
731. He has further stated that the applicant has remained in jail for more than two years and the case has not completed because no witness has been examined in this case, therefore, he argued that the applicant may be granted bail on the ground of hardship. He has relied upon unreported decisions of this Court passed in Criminal Bail Application No,605 of 1998, Mahmood and another v.
5. State, Criminal Bail Application No,140 of 1989, Karamatullah v. State, Criminal Bail Application No,774 cf 2002, Ahmed v. State, Criminal Bail Application No,71 of 2002, Saindad v. State and Criminal Bail Application No,513 of 2002 Ahmed Ali and another v. State,.
6. ' On the other hand learned A.A.-G. Has stated that the case of co-accused F'azal Muhammad is not identical to the case of the present applicant as accused Fazal Muhammad was found innocent by the police during the investigation and that the evidence against the present applicant is his own confession, therefore, cases of both accused are distinguishable from each other. He has further argued that the confession of the applicant was recorded in accordance with law and that the grounds taken by the applicant in challenging the confession cannot be scrutinized at this stage, as it requires deeper appreciation of evidence. He has further argued that the authorities relied upon by the Advocate for applicant are not applicable to this case. He has further argued that the case was challaned on 15-5-2000, therefore, the required two years period had not completed when the third and fourth provisos to section 497, Cr.P.C. Were repealed. He has further stated that the ground of hardship is alien to the Criminal Procedure Code, and is not available, therefore, the applicant is not entitled for the concession of bail.
7. ' I have given due consideration to the arguments and find that the co-accused Fazal Muhammad was released by the police during the investigation, as such, the presumption of innocence of co- accused Fazal Muhammad was confirmed by the police through their investigation. However, the Court has not accepted the same as he has been joined as an accused. But during the investigation the present applicant was found involved in the case by collecting several pieces of evidence including the confession of the applicant. Furthermore role of causing fire-arm injury to the deceased has been assigned to the present applicant, which he has confessed in his judicial confession. However, the judicial confession has to be scrutinized at the stage of final decision, which is to be examined in the light of evidence of Magistrate and other pieces of evidence produced at the trial. In addition to that there is evidence of eye-witnesses and recovery of pistol from the possession of the applicant as such prima facie case is made out against the applicant, therefore, there are reasonable grounds to believe that the applicant is involved in the case, hence he is not entitled for the concession of bail on merits. From the above position, it is clear that his case is distinguishabie from the case of the co-accused Fazal Muhammad.
8. ' As regards the delay in disposal of the case, the learned A.A.-G. Has stated that the case was challaned on 15-5-2000, two years expired on or about 15-5-2002 but the third and fourth provisos to section 497, Cr.P.C. Have been repealed vide Ordinance No,LIV of 2001 on 11th October, 2001, as such when the third and fourth provisos were repealed at that time the required period of two years had not expired, hence the statutory ground of delay in disposal of case for two years is not available to the applicant. The learned Advocate for the applicant has admitted the above position, but stated that as a case of hardship the bail may be granted.
9. ' It is pointed out that a bail can be granted to an accused person on the grounds mentioned in section 497, Cr.P.C. The ground of hardship is not available in section 497, Cr.P.C. Before the year 1979 and before the third and fourth proviso were added to section 497, Cr.P.C. The superior Courts were granting bail to accused persons on the ground of delay in the disposal of case in appropriate cases if the delay had caused abuse of the process of the law, as delay per se was not found to be good ground for bail in murder cases. Such period varies from case to case depending upon the circumstances of the each case. In this regard a reference is invited to a case of Ahrar Muhammad v. State reported in PLD 1974 SC 224 and at page 227, it has been observed as under:-- "It is true that the view of this Court has consistently been that mere delay by itself is not a sufficient ground for the granting of bail; but, at the same time, it cannot be said that inordinate or unjustified delay in the prosecution of a case amounting to an abuse of process of law can never be taken into account as relevant ground for the granting of bail. If the delay is so inordinate or so scandalous or so shocking as to amount clearly to an abuse of the process of law there can be no reason either in principle or in law as to why it cannot be treated as a sufficient ground for the granting of bail. If such delay can be sufficient for quashing a criminal proceeding, then it can also be an equally good ground for the granting of bail."
10. ' A reference is also invited to a case of Barkhurdar v. Liaquat All and 2 others PLD 1977 SC 434, which was decided on 22-2-1977, in which the Honourable Supreme Court cancelled the bail of the accused and made the following observations as to the effect of delay:- "Having heard the learned counsel for the parties we fell that unfortunately an impression of a conflict of views in matters of bail on ground of delay has gained ground. We may, however, reiterate that the legal position admits of no equivocation or uncertainty inasmuch as it is not delay per se in all cases of murder regardless of its responsibility or other circumstances that would justify the grant of bail. It is only such inordinate delay as amounts to abuse of process of the Court that would justify grant of bail. Most regrettably, however, in the peculiar circumstances with which the Courts are confronted, namely, the acute inadequacy of manpower in the judiciary and the huge accumulation of files at the District level, particularly since after the abolition of commitment proceedings, two to three years' delay in the commencement of trial as a matter of course seems to be quite inevitable. The unprecedented filing up of murder cases awaiting trial and the resultant congestion in jail owning to a large number of under-trials has created an unparalleled situation. While on the one hand under-trial prisoners are detained for two to three years and even more in some cases, the Courts cannot afford to make discriminatory orders granting bail on ground of delay in one case and refusing it in another for the same."
11. ' Because of such decisions and different period of delay, for the release of the accused persons, the law was codified. First third proviso was added to section 497, Cr.P.C. Making the delay as one of the grounds for the grant of bail to an accused person fixing a uniform period for release of all accused persons falling within the ambit of said provision. Subsequent fourth proviso was added under which certain conditions for application of 3rd proviso were added. Then third and fourth provisos were omitted vide Ordinance No,LIV of 2001, but again it was inserted by Act, XIX of 1994.
12. Lastly the 3rd and 4th provisos to section 497, Cr.P.C. Have been omitted vide Ordinance No,LIV of 2001 from 11-10-2001. As such after the Ordinance No,LIV of 2001, the ground of delay in the disposal of cases is no more available to an accused person as a statutory right.
13. ' From the above resume, it is clear that the first, intention of the Legislature was that the accused person shall be released on bail on the ground of delay, by making it a valid and legal ground for grant of bail, but subsequently, the Legislature changed their intention by declaring that the accused persons shall not be granted bail on the ground of delay, as such the statutory right of bail on the ground of delay in the disposal of cases has been taken away or withdrawn. Thus, after the omission of 3rd and 4th provisos to section 497, Cr.P.C. The accused person cannot claim bail as a statutory right on the ground of delay in the disposal of case as the said ground is no more available to them.
14. ' It is well-settled principle of law that the delay per se is not a sufficient ground for grant of bail, but if it causes abuse of the process of law then only it can be considered as a ground for the grant of bail as held by the Supreme Court of Pakistan in various authorities decided before the insertion of 3rd proviso to section 497, Cr.P.C.
15. ' Keeping in view the earlier decisions of the Honourable Supreme Court of Pakistan on the subject, it is to be seen whether in the present case delay in disposal of the case has caused an abuse of the process of law or not.
16. ' In the present case, some of the accused persons are absconders as shown in the challan and subsequently one of the accused was joined in the case and process in the shape of N.B.Ws. For the arrest of the accused persons were issued so- that the proclamation can be issued and proceedings under section 512, Cr.P.C. Could be ordered and the case can be fixed for trial. The said process was completed on 23-7-2001. It is also pointed out that the accused is involved in a case which involves capital punishment, the same cannot be proceeded with in the absence of his Advocate. The case diary' shows that for the first time, the Advocate for the applicant appeared on 3-10-2001 when he Moved an application for bail. Before that the diaries are silent with regard to the engagement of an Advocate by the applicant. The applicant was required to engage an Advocate, so that his case could have proceeded. The Advocate could have easily pointed out to the Court that the case of the absconding accused might be bifurcated from the case of present applicant, so that the case of the present applicant could be fixed for early disposal. It is also one of the duty of the Court to see that the case should be proceeded with at an early date for that purpose the case of the accused persons who are not attending the Court can be bifurcated under para.1 of Notification No,6 R.H.D. No,2334, H/40, dated 5-7-1947 mentioned in rule 7, Chapter VII of the Federal Capital of Sindh Courts Criminal Circulars, under which case of accused persons who are not apprehended can be D separated. The above-mentioned para. Reads as under:-- "1. Where more than one accused is involved, the commencement of proceedings should not be held up until all the wanted persons are apprehended, but the case should be proceeded with as soon as the principal accused is/are secured, excepting exceptional circumstances with the special permission of the District Magistrate concerned."
17. ' However, it is pointed out that the delay in disposal of the case is caused by various reasons involving as follows:-
(1) Courts: Such as large number of pendency of cases, less number of judicial officers, inadequate infrastructures, working conditions, staff etc.
(2) Accused: Such as their abscondence, non-engagement of Advocates, pressure to the complainant party for compromise etc., arrangement with jail personnel for not producing them in Court, so that period of statutory period expires and case should be delayed etc.
(3) Advocates: Such as taking large number of cases, not preparing the cases for various reasons, engagement in other cases or superior Courts etc.
(4) Prosecution: Such as inadequate number of prosecutors, their staff, no liaison between them and police, non-cooperative of police with them etc.
(5) Police: Such as non-execution of process of the Court, noncooperation with Courts, taking no interest after submission of challans in Courts, no follow up of cases, non-attendance in Courts etc.
(6) Jail authorities: Such as, less numbers of vans for transporting the prisoners, non-availability of police personnel for transporting the prisoners, transfer of prisoners from one jail to another, non- production of prisoners in Courts for -various reasons, genuine and artificial etc.
(7) Government: Such as non-sanctioning of sufficient No, of post of judicial officers, insufficient budget to the Courts etc. ' In the present scenario, all these and other various factors are contributing factors individually and collectively and playing dominant role towards the delay in the disposal of cases, therefore, the same are to be taken into consideration while examining the point of delay in disposal of the case, as an abuse of the process of the law.
18. ' It will be seen that after abolition of committal proceedings, 2 or year's period in commencement of proceedings is inevitable, as observed by the Honourable Supreme Court of Pakistan in the case of Burkhurdar (supra). After expiry of the said period, the period for delay as an abuse of the process of law will start. But it depends upon the facts and circumstances of each case, as such no hard and fast rule can be laid down in this respect.
19. ' After considering the material available on the record, circumstances surrounding the present case, attitude of the police towards Courts and several other above mentioned factors; I am of the considered view that the delay in the disposal of the case, in the circumstances of the present case is not an abuse of process of the law, as such, the applicant is not entitled for the concession of bail on the ground of delay. The authorities quoted by the learned Advocate for the applicant are not applicable to the circumstances of the present case, as the facts and circumstances of said cases are quite different from the present case.
20. ' In view of above position, the application merits no consideration, therefore, the same is dismissed.