MUHAMMAD RAZZAK vs The STATE

ORDER

' SYED MUHAMMAD FAROOQ SHAH, J.---The applicant Muhammad Razzaq son of Muhammad Ashfaq has sought bail under section 497, Cr.P.C. In Crime No, 367 of 2010 registered at Police Station Sir Syed, under section 302/34, P.P.C. Earlier, by an order dated 27th September, 2012 bail has been declined by the learned trial Court hence the instant bail application has been pressed by learned counsel on sole ground of statutory delay in trial.

2. Succinct relevant facts leading to this case are that on 2-6-2010, complainant Shujaur Rehman son of Attaur Rehman lodged F.I.R. Wherein it is alleged that on the mentioned date at 1630 hours his son-in-law Zafar along with his friend Muhammad Razzaq had entered the house of complainant and at that time the daughter-in-law and granddaughter of complainant was present at the house who were locked in the room by the accused persons and then both strangulated the wife of complainant by putting cloth on her face and when they were tying her someone made shouting whereupon people gathered and the culprit Zafar escaped but Muhammad Razzaq was apprehended by the people and gave him beatings. In the meantime police reached there, to whom Muhammad Razzaq was handed over. It appears that Mst. Seema Begum wife of complainant succumbed to her injuries in the hospital, hence the applicant/accused was charge-sheeted under section 302, P.P.C.

3. I have heard the learned counsel for applicant, learned Assistant Prosecutor-General, Sindh and perused the record.

4. To support his contentions, the learned counsel for the applicant contended that the applicant/accused was arrested on 2-6-2010 and since then he is continuously in confinement, therefore, in view of 3rd and fourth proviso of section 497(1)(b), Cr.P.C. He is entitled for bail. It is submitted that the charge was framed on 5-11-2010 and since then not a single witness has been examined by the prosecution. It is next contended A that certified copies of diary sheets, annexed with the application, shows that delay in trial is not attributable to the applicant. Learned counsel further submitted that legal heirs Shujaur Rehman and Rizwanur Rehman i,e, the husband and son of the deceased respectively endorsed their no objection for grant of bail by filing affidavits.

Learned counsel categorically stated that in view of plethora of rulings of superior courts, the applicant/accused is entitled for bail on the ground of statutory delay in trial.

5. In the case of SHABEER v. THE STATE reported in 2012 SCMR 354, the Hon'ble Supreme Court with regard to delay in conclusion of trial held that "Accused was arrested on 14-11-2007 and since then he had been in the custody despite framing of charge on 29-7-2008 and no proceedings had been concluded nor there was any reasonable possibility of conclusion of trial in near future, bail was allowed". In the case of ZAHID HUSSAIN SHAH v. THE STATE reported in PLD 1995 Supreme Court 49, the Hon'ble Supreme Court held that "the bail under the 3rd proviso to section 497(1), Cr. P. C.

Can be refused to an accused by the Court only on the ground that the delay, in the conclusion of the trial had occasioned on account of any act or omission of the accused or any other person acting on his behalf and the bail under the 3rd proviso to section 497(1) , Cr.P.C. Can also be refused by the Court if the case of the accused fell under the 4th proviso to section 497(1), Cr.P.C.

In all other cases the Court must grant bail. In the case of DANISH AHMED v. THE STATE reported as 2012 MLD 1180 (Sindh), a Division Bench of this Court held that prosecution had not established any delay in concluding the trial was attributable to the accused, hence the accused was enlarged on bail with directions to the trial Court to conclude trial within four months. In . Another case of ZIAUDDIN v. THE STATE reported as PLD 2012 Sindh 147, this Court has held that "Trial could not be said to have concluded when three prosecution witnesses were yet to be examined and in such circumstances concession of bail on grounds of statutory delay could not be denied to the accused". Bail to the accused on the ground of delay in conclusion of the trial was allowed and he was admitted to bail. In the same situation dictum as laid down by this Court is that bail on the ground of statutory delay in conclusion of the trial can be refused to the accused by the Court on the grounds that if the delay in conclusion of trial had occasioned on account of an act or omission on the part of the accused or any person acting on his behalf, or if accused was a previously convicted offender for an offence punishable with death or imprisonment for life or, if accused in the opinion of the Court, was a hardened, desperate or dangerous criminal or was accused of an act of terrorism punishable with death or imprisonment for life. The court further observed that when statement of one of the prosecution witness was yet to be recorded, it could not be said that the trial had been concluded. Trial would be deemed to be concluded only when the statements of one of the prosecution witnesses had been recorded. Similar observation is made in an identical case decided by the learned Judge of this Court i,e, MUHAMMAD IBRAHIM v. THE STATE reported in 2012 MLD 1318 (Sindh).

6. On the other hand, the learned Assistant Prosecutor-General, Sindh conceded the bail to the applicant on the ground of statutory delay in trial and admitted that trial could not be commenced since last more than two years. He has further admitted that two legal heirs of the deceased patched up and compounded the offence with the applicant/accused.

6. In view of above, more particularly in light of the case-law mentioned above, the applicant is admitted to bail subject to his furnishing surety in the sum of Rs, 2,00,000 (Rupees two lacs only) and P.R. Bond in the like amount to the satisfaction of the trial Court. The learned trial court is however, directed to expedite the trial, preferably within a period of four months.