Waheed Ahmad vs The State
This matter concerns a second post-arrest bail application filed by the petitioner, Waheed Ahmad, who is accused of dacoity under Section 397 of the Pakistan Penal Code 1860. The petitioner sought bail primarily on the grounds of inordinate delay in the trial, which had failed to conclude by the deadline previously set by the High Court. The core legal question was whether the continued detention of the accused was justified given the significant delay in trial proceedings, which were attributable to both the prosecution's failure to produce witnesses and administrative issues, as well as the trial court's decision to close the petitioner's right to cross-examine witnesses. The Court held that the petitioner was entitled to bail, noting that he had been in custody for over two years with minimal progress in the trial. The key principle laid down is that where the prosecution fails to ensure the attendance of witnesses and the trial is unduly prolonged, the accused's right to liberty outweighs the state's interest in continued incarceration, particularly when the trial court's procedural handling of the case has been hasty.
- Does the failure of the prosecution to produce witnesses within a reasonable timeframe constitute sufficient grounds for the grant of post-arrest bail?
- Can a trial court's decision to close the right of cross-examination due to the non-availability of counsel be a factor in granting bail?
- Is an accused entitled to bail when the trial court fails to adhere to a previously set deadline for concluding the trial?
- Section 397, Pakistan Penal Code 1860
ORDER M.A. ZAFAR, J. - Waheed Ahmad, the petitioner seeks post-arrest bail in case F.I.R. No. 80/2007,-dated 23.2.2007 for offence under Section 397, P.P.C, registered with Police Station, Haveli Lakha, Tehsil Depalpur, District Okara at the instance of one Sardar Ali complainant.
2. According to the prosecution, .Five unknown persons while armed with, fire-arms forcibly entered into the house of the complainant and snatched cash mobile phone, gold ornaments etc. It is also the prosecution case that the said persons injured the complainant and his brother.
3. This is the second bail application earlier (Criminal Miscellaneous No. 7733-B/08) was dismissed by this Court vide order dated 19.9.2008 with the direction to the learned Trial Court to conclude the trial on or therfore 31.12.2008.
4. Learned counsel for the petitioner submits that despite the. Direction issued by this Court. The trial of the petitioner has not been concluded so far.
5. After the order passed by this Court on 19.9.2008, case was fixed for hearing on 28 dates and out of the said 28 dates, on 11 dates, witnesses were not present and on seven dates due to non- availability of petitioner's counsel, case was adjourned and on other dates either the petitioner was not produced from jail, or the learned Presiding Officer was on leave or the partial statement of the prosecution witnesses were recorded. Petitioner is in custody for the last more than two years and during the said period of two years, prosecution only produced three witnesses and learned Trial Court has issued non-bailable warrants of arrest for procuring the attendance of Nazir Ahmad, S.I.
The learned Magistrate also closed the right of the petitioner to cross-examine the witnesses in a haste. Although, on previous four dates of hearing witnesses did not appear and the day when they appeared, the learned Magistrate closed the right of the petitioner to cross-examine them on account of non-availability of his counsel. I -do not want to comment further on the order dated 9.5.2009 because as told by the learned counsel for the petitioner matter is sub judice before the Court of Session in a revision against the said order.
6. For the foregoing reasons application is allowed and petitioner is admitted to bail subject to furnishing bail bonds in the sum of Rs.
2,00,000/- with one surety in the like amount to the satisfaction of learned Trial Court.