SAJAWAL alias BHOLA vs THE STATE and another

ORDER

' SHAHID HAMEED DAR, J.---Sajawal alias Bhola seeks bail after arrest in case F.I.R. No,178 of 2008 dated 4-10-2008 under sections 302, 364, 347, 452, 337-11(ii), 148, 149, 109, P.P.C. And section 3 of Amplifier Act, 1965, registered at Police Station Hadiara, Lahore, on the complaint of Hadayat Ali.

2. The petitioner had been arrested on 26-11-2008 and faces incarceration ever-since. The trial of the accused has not been concluded so far. Learned counsel for the complainant has pointed out that two witnesses Hadayat Ali P.W.1 and Muhammad Majid P.W.2 were recorded on 30-6-2011 but they were not cross-examined due to non-availability of learned defence counsel.

3. Learned counsel for the petitioner submits that the delay in conclusion of the trial has not been occasioned by any act of the accused or that of any other person acting on his behalf; the petitioner has not been previously convicted for an offence entailing capital punishment; the petitioner is not a hardened, desperate or dangerous criminal nor his case is hit by the exceptional clause to 5th proviso of section 497, Cr.P.C, so he may be set at liberty.

4. On the other hand, learned Deputy Prosecutor-General Punjab assisted by learned counsel for the complainant submits that the delay in conclusion of the trial has been occasioned exclusively by the accused or by the person acting on his behalf as is manifest from bail declining order dated 10-6-2011 passed by learned trial court; the accused-petitioner, as well as his co-accused had committed brutal murder of two persons, so his case falls within the definition of the 'adjectives' mentioned in the Exceptional clause.

5. I have heard learned counsel for the parties and gone through the record.

6. The post arrest bail applications of the petitioner had been dismissed on merits not only by this Court but also by the august Supreme Court of Pakistan as is evident from order dated 27-8-2009 passed in Crl. P.L.A No,854-L of 2009 and order dated 25-11-2009 passed in Criminal Review Petition No,331 of 2009. The instant petition, however has not been moved on merits of the case but only on the ground of statutory delay. It appears from the record that the petitioner had been arrested on 26-11-2008. The prosecution appears to have shown lethargy throughout the period of imprisonment of the petitioner as they could produce only two witnesses before the trial court for the first time on 30-6-2011. The challan in the instant case had been submitted before the trial court on 20-12-2008 which progressed at snail's pace and then the complainant filed a private complaint against the accused on 23-1-2009. The complaint case equally matched the pace of progress of the challan case as the accused in the complaint case were charge-sheeted on 9-1- 2011 after having been summoned to face the trial on 21-3-2009. The statutory period when reckoned with from the date of arrest of the accused-petitioner i.e, 26-11-2008, appears to have expired on 25-11-2010 and prosecution in the meantime did not bother to produce its witnesses even once before the trial court for their examination. The instant bail application has been moved on behalf of the petitioner on A 23-6-2011, almost seven months after the dead-line set by the statute i.e, under section 497(1) proviso (v) of Code of Criminal Procedure, for conclusion of the trial qua an offence entailing capital punishment within two years, had already gone by. The complainant having sensed the subtlety of the situation rushed into recording of statements-in- chief of a couple of prosecution witnesses on 30-6-2011, but they could not be cross-examined due to non-availability of the defence counsel. The fact however, remains that above situation arose much later than the expiry of the statutory period. The petitioner has not been previously convicted for an offence, entailing capital punishment nor he, to the mind of this court, is a hardened, desperate or a dangerous criminal. It is found from the record that the accused-petitioner did not contribute in any manner towards delay in conclusion of the trial nor any other person acting on his behalf has done so.

7. Therefore, the instant petition is allowed and the petitioner is admitted to post arrest bail subject to furnishing bail bonds in the sum of Rs,2,00,000 with two sureties each in the like amount to the satisfaction of the learned trial Court.

8. Before parting with the order, it looks appropriate to direct the trial court to adopt every possible measure to procure the presence of the prosecution witnesses and accelerate the proceedings of the trial in such a way that the trial is concluded within next five months.