Abdul Hameed @ Toti vs The State

ORDER SARDAR TARIQ MASOOD, J. - Through this petition under Section 497, Cr.P.C. Abdul Hameed alias Totti petitioner seeks his post-arrest bail in case F.I.R, No. 46/2010, dated 14.01.2010 under Sections 302, 364, 365, 201,-34, P.P.C, registered at Police Station Nawan Kot, Lahore.

2. Learned counsel for the petitioner contends that petitioner is not nominated in the F.I.R, and he was introduced through a supplementary statement on 14.1.2010; that there is no direct evidence against the petitioner; that the prosecution case is based upon the circumstantial evidence; that the petitioner was arrested on 7.2.2010 and more than two years have passed but his trial has not been concluded without any fault on his part. Further contends that thrice this Court directed the Trial Court to conclude the trial but the said directions have not been complied with.

3. On the other hand, learned DPG assisted by learned Counsel for the complainant has vehemently opposed this petition while arguing that although petitioner is not nominated in the F.I.R, but the witnesses lastly seen the deceased in the company of the petitioner and his co- accused; that motorcycle of the deceased was found from a drain (gandanala), whereas, the copy of the I.D. Card and the registration book of the said motorcycle was recovered at the instance of the petitioner; that the trial is in progress and statements of 11- witnesses have been recorded and 5 witnesses have been given up, whereas, statements of six witnesses are yet to be recorded; that petitioner is not entitled for the concession of bail on the statutory ground because the delay was occasioned by the act of the petitioner and his learned counsel.

4. Heard. Record perused.

5. Admittedly, the petitioner is not nominated in the F.I.R, and he was introduced through a supplementary statement, but during investigation the statements of certain witnesses have been recorded, who had lastly seen the deceased in the company of the petitioner and his co-accused.

During investigation certain articles i.e. Photo-copy of the I.D. Card of the deceased and registration book of the motor-cycle of the deceased was recovered from the possession of the petitioner. It is a case of circumstantial evidence and evidence of important witnesses has already been recorded by the learned Trial Court. Any observation upon the circumstantial evidence recorded by the learned Trial Court will prejudice the case of either party. At this stage, opinion of the Court will definitely damage the case of the defence or the prosecution.

Although, learned Trial Court was directed thrice, by this Court to decide the case expeditiously but the trial could not be concluded due to conduct of the defence. The order sheet reveals that till now statements of 11-witnesses have been recorded, 5 Witnesses have been given up, whereas, statements of six witnesses are still to be recorded. It is a circumstance that Mst. Shazia complainant was examined by the learned Trial Court as PW-9. Her examination-in-chief was recorded on 10.3.2011. The cross-examination of the said witness was completed on 17.3.2012 after about one year. It is also a fact that examination-in-chief of Attiq-ur-Rehman's PW-10 and Faruq Saleem PW11 was recorded on 10.3.2011 and 13.4.2011 respectively and almost more than 1-1/2 year have passed but they have not been cross-examined by the petitioner or his counsel.

It is the settled principle of law that if a witness appeared before the Court and defence avoid to cross-examine him and cross-examination was reserved, then till his statement is complete, the delay would be deemed to be caused by the defence side who did not cross-examine the said witness on the said date. The orders sheet reveals that on different occasions witnesses were present but the defence was at pain to linger on the matter. The learned Trial Court on 20.12.2011 observed as under:- "In hand case is lingering on for cross-examination of above-referred three witnesses for last many months. Today, newly appointed learned defence counsel as well as learned proxy counsel has sought adjourned for the purpose of cross-examination which is allowed as last and final opportunity with the observation that in case of failure to appearance of any of the learned defence counsel for the purpose of cross- examination, the accused would be provided a defence counsel at State expenses for the furtherance of the trial."

Likewise, on 5.11.2011, Mst. Shazia, Attiq-ur-Rehman's PW-10 and Faruq Saleem PW-11 were in attendance. The learned Trial Court observed as under:- "Learned defence counsel has sought an adjournment for the purpose of prosecution evidence.

Learned counsel for the complainant has submitted that today was the last opportunity for conducting the cross- examination on the witnesses upon which learned defence counsel has submitted that on account of Eid Day he has to leave early and is in no position to conduct the cross-examination on the witnesses today."

Likewise on other dates, final opportunity was given to the defence but they remain failed to cross- examine the witnesses i.e. Attiq-ur-Rehman's PW-10 and Faruq Saleem PW-11. Due to the above- mentioned reasons it is quite clear that delay in the trial is due to the conduct of the petitioner and his learned counsel who had not cross-examined the witnesses who were appearing before the Court for the last 1 1/2 year.

9. Consequently, the petition in hand having no force is dismissed-. Although, earlier thrice the learned Trial, Court was directed to conclude the trial within the stipulated period but said direction was not complied with. Now the learned Trial Court is directed to conclude the trial positively within three months of the receipt of this order with an intimation to the D.R. Judicial of this Court. In order to comply with this direction learned Trial Court is directed to proceed with the trial on day to day basis. Office is directed to forward this order to the Trial Court for its compliance.