AKBAR BAIG Versus THE STATE
ORDER
1. The applicant is facing trial under section 365/34, P.P.C. and section 323/325 read with section 34, P.P.C., and Sections 16 and 18 of Zina (Enforcement Hudood) Ordinance, 1979.
2. The brief facts of the prosecution case are that on 5‑3‑1985 PW Moinul Haq alongwith his two aunts, Mst. Badar and Shaheen went to Sea View, Clifton, in his Toyota car for a round. When they did not return back, the complainant Aminul Haq, who is father of Moinul Haq went in search of them at different places. That ultimately he came to know that Moinul Haq and the two ladies had returned back and, therefore, he also went back to his house. On reaching the house he found that his son was injured. On inquiry Moinul Haq informed him that one police officer alongwith his companions had kidnapped and taken them to Super Highway, where they were maltreated, but they succeeded in running away from the clutches of the said police officer, and his companions. Thereafter, Dr. A.M.Khan, a near relation of the complainant looked after the injured and gave him necessary medical aid. Since the complainant was a respectable person, he did not lodge any report with the police, but after 2/3 days of the incident, somebody threatened them of dire consequences, if the matter was taken to the police. The complainant thereafter went to D.I.G. Police who referred the matter to SP, and in turn, SP referred the matter to S.H.O. where the statements of complainant and his own were recorded. Later on when the complainant came to know that the accused were arrested, he requested for necessary action. During the investigation of the murder case of late Masoom Ali and his daughters, the accused of the present case were arrested, and the present applicant alongwith Shoukat Hayat Police Officer were challaned. The applicant moved an application for bail before the learned trial Judge but the same was rejected vide order dated 14‑7‑1987. The applicant came up before this Court vide Criminal Bail No. .1071 of 1987 but he was refused bail by this Court vide order dated 14‑10‑1987 with a direction that the applicant can repeat the bail application after some witnesses are examined.
3. However, no progress was made in the case and, therefore, the applicant moved an application for bail before the trial Court but the same was rejected vide order dated 14‑2‑1988.
4. I have heard Mr. IA. Hashmi, learned counsel appearing for the applicant and Mr. S. Sarfaraz Ahmed, learned Assistant Advocate‑General for the State, and have gone through the F.I.R., order rejecting bail application, certified copy of charge, certified copy of case diary and the affidavits filed by P.Ws. Muhammad Tariq Ali and Muhammad Shoaib.
5. It has been contended by Mr. IA. Hashmi that the charge was framed against the applicant under section 365, P.P.C. and the maximum sentence provided for the above offence was seven years. That the F.I.R. was belated by two years and there was no ostensible explanation for the same. That ladies Mst. Badar and Shaheen were neither examined by police nor they are cited as witnesses in the case, therefore, the prosecution is left with three witnesses only, namely, Shoaib, Muhammad Tariq, and Faizul Haq son of the complainant. As far as P.Ws. Muhammad Tariq and Shoaib are concerned, they have filed affidavits exonerating the applicant Akbar Baig, and according to them applicant Akbar Baig had helped the victims in order to save them from Inspector Shoukat Hayat. As far as the statement of Fa1Z111 Haq was concerned, he has not assigned any overt act so far as the present applicant was concerned. That the applicant has remained in jail for more than one year, and the case has made absolutely no progress. That the delay in disposal of the case was not occasioned by anv act or omission of the applicant or his counsel.
6. Mr. S. Sarfaraz Ahmed, learned Assistant Advocate‑General appearing for the State has contended that the co‑accused had obtained stay of proceedings from this Court as well as from the Hon'ble Supreme Court and, therefore, the delay in conclusion of the trial was not occasioned due to any act or omission of the prosecution. That the offence committed by the applicant and the ‑ used was heinous and, therefore, the applicant is not entitled to bail.
7. I have considered the contentions of the learned counsel for the parties. It is an admitted position that the name of the applicant does not transpire m the F.I.R. nor any description is mentioned. The F.I.R. is belated for nearly two years. Out of the five eye‑witnesses, two ladies were neither examined by the police nor they are cited as witnesses. Out of the three remaining witnesses, P.Ws. Muhammad Tariq and Shoaib have filed affidavits m which they have exonerated the present applicant, and have clearly stated that he was also one of the persons who had saved the poor ladies and PW Faizul Haq. The statement of P.W. Faizul Haq does not show that the present applicant caused any injury to him nor any overt act has been assigned to him. In view of the above facts and circumstances, the case of the present applicant is distinguishable from that of the main accused. It is an admitted position that the present applicant was arrested on 6‑2‑1987 and has remained m jail for more than one year, the case diary clearly shows that neither the applicant nor his counsel were responsible for the delay which had occurred in conclusion of the above case. No doubt, the co accused Shoukat Hayat had moved this Court as well as Hon'ble Supreme Court for quashment of notification issued by the Provincial Government for trial of the case in Central Prison and stay was granted. In any case the stay was obtained by co‑accused Shoukat Hayat, and the present applicant was not responsible, and had nothing to do with the stay so obtained. While deciding the question of grant of bail on the ground of statutory delay the Court has to look into the case of the accused who applies for bail, and the delay which was occasioned due to any act or omission of the co‑accused could not deprive the person from the right of obtaining bail, if he himself was not responsible for delay in any way. Reliance is placed on the case of Khawand Bux v. Ghulam Sarwar and 2 others P L D 1982 Kar. 965, wherein Fakhruddin H. Shaikh, J. of this Court (as he then was) has observed that:‑‑
8. "Moreover, the delay caused by accused Miral shall not be attributable to any act or omission on the part of the respondents Nos. 1 and 2 nor the adjournment application by one of the accused shall be reason for laying the blame for the delay on the other accused."
9. In the case of Agha Shafaat Husain and others v. The State 1981 P Cr. L J 572 word `accused' was defined with reference to the third proviso of subsection (1) of section 497, Cr.P.C. It was he lit m the above case that:‑‑
10. "The word `accused' used in the third proviso to subsection (1) of section 497 is referable only to the applicant for bail and none else. If delay in trial occurs on account of the conduct of the co‑accused it shall not be referable to the other person."
11. In the case of Shauki alias Shaukat v. The State and another (1984 SCMR 613) it was observed by their Lordships of the Supreme Court that:‑‑
12. "On the plain language of the third proviso to section 497, Cr. P. C., we regret our inability to subscribe to the view that prevailed with the learned Judge in the High Court, that the act or omission of one of the co‑accused who are being joinedly tried would deprive the others of the benefit of bail although individually such other co‑accused is not himself responsible for the delay in the trial."
13. In view of the above discussion, I am of the considered view that the case of the applicant is distinguishable from the case of the main accused and it requires further inquiry within the meaning of section 497 (2), Cr. P. C. I, therefore, direct that the applicant shall be released on bail on furnishing surety in the sum of Rs. one Lac (Rs. 1,00,000) and PR bond in the like amount to the satisfaction of the trial Court.
14. However, if any tangible evidence is brought on record against the applicant during the trial, the trial Court will be at liberty to cancel his bail.
15. M.Y.H./A‑373/K
16. Bail granted.