ARBAB alias QASIM vs THE STATE
The applicant filed a post-arrest bail application in Crime No. 14 of 2005 registered at Police Station Geehalpur, seeking bail on the ground of statutory hardship due to protracted incarceration without material progress in the trial. The core legal question was whether the applicant was entitled to bail on the ground of delay in the conclusion of the trial when the delay could not be attributed solely to the accused. The Sindh High Court held that the applicant was entitled to bail as the delay was caused by non-production of the accused by jail authorities, adjournments sought by the complainant, heavy caseload of the trial court, and judicial engagements, rather than dilatory tactics by the accused. The court laid down the principle that an accused cannot be penalized for the failure of the prosecution and the state machinery to conclude the trial within a reasonable time, as a fair and efficacious trial is a fundamental right of all citizens of Pakistan.
- Can an accused be granted bail on the ground of hardship when the trial has been delayed due to non-production of the accused and administrative constraints of the court?
- Does prolonged incarceration without significant progress in the trial entitle an accused to post-arrest bail?
- Can an accused be penalized for delays caused by the prosecution, complainant, or trial court's heavy caseload?
- Section 302, Pakistan Penal Code 1860
ORDER
1. ' KHILJI ARIF HUSSAIN, J.---The applicant has filed this bail application in Crime No,14 of 2005 of Police Station Geehalpur on the ground of hardship.
2. ' Brief facts of the prosecution case as per F.I.R.Lodged by the complainant Abdul Rasheed are that on 30-4-2002 at about 11-30 hours the applicant fired upon deceased Akhtar Ahmad with his T.T.
3. Pistol who died on the spot. Bail application earlier filed on merits by the applicant was dismissed by my learned brother Rahmat Hussain Jafferi, J vide order, dated 2-4-2005.
4. ' Mr. Muhammad Ayaz Soomro, learned counsel for the applicant argued that the applicant was arrested on 26-12-2003 and he is behind the bars from last about 2-years 7-months and 3-days.
5. Charge was framed on 12-1-2004 and only medical officer has been examined on 14-1-2004.
6. Thereafter no progress has been made in the matter. None of the P.Ws. Has been examined by the Court. In support of his contentions he has relied upon Ghulam v. State (PLD 2005 Karachi 255), Abdul Waheed v. State (2005 M LD 802), Muhammad Yousuf v. State (2004 PCr.LJ 505) and Abdul Hameed v. State (2003 M LD 19).
7. ' On the other hand, Mr. Mushtaque Ahmed Korejo, Advocate for the State argued that on few occasions the applicant sought adjournment and P.Ws were in attendance on the date of hearing and delay caused in the matter cannot be attributed to the prosecution.
8. ' I have taken into consideration respective arguments advanced by the learned Advocates for the parties and perused the record.
9. ' From the perusal of the record it appears that though on few occasions matter was adjourned on the request of the applicant but at the same time request for adjournments were also made on behalf of the complainant. I was surprised to note that despite the fact that the bail application was decided by this Court on 2-2-2005 the matter was adjourned from time to time by the learned trial Court on the request of the prosecution for want of police papers till 29-5-2005. On number of occasions matter was adjourned either police failed to produce the accused and or on the request of the complainant party. The learned trial Court in his order while refusing the bail also acknowledged that he could not examine the witnesses due to heavy board. I would like to reproduce the relevant paragraph of the order passed by the learned trial Court:-- "One of the P.Ws has been examined by this Court. The P.Ws. Are in attendance. There is a heavy board of cases viz. 250/300 pending on the file of this Court. The applicant/accused has not been produced by jail authority Jacobabad after creation of District, Kashmore due to shortage of funds.
10. No hardship is apparent on the record. No presumption of innocence can be attached to the accused only for the reason that he is in jail for mere than two years.
11. It would have been seen from the diary sheet of the case that delay in conclusion of the trial is due to, firstly non-production of the accused persons and secondly due to request made by the complainant party for adjournment and or due to inaction on the part of the trial Court in deciding the matters. On few occasions matter was adjourned as the learned Judge was busy in election matters and or on leave. The A applicant cannot be penalized due to failure of the prosecution in examining the prosecution witnesses within reasonable time. I would therefore, grant bail to the applicant as right to a fair and efficacious trial is the fundamental right of all citizens of Pakistan.
12. The applicant shall be released on bail subject to his furnishing surety in the sum of Rs,300,000 and P.R. Bond in the like amount to the satisfaction of trial Court.
13. ' However, I would like to observe that applicant or other accused if adopted delaying tactics of concluding the proceedings then the trial Court can recall the to the applicant.
Cited by 1 case
- SHAH NAWAZ vs THE STATE 2010 YLR 3182