KHADIM HUSSAIN Versus State

ORDER

MUHAMMAD HASHIM KHAN KAKAR, J.--- Applicant ' Khadim Hussain son of Khair Muhammad, who was refused bail by the Additional Sessions Judge-V, Quetta in Crime No.14 of 2007, under sections 302; 324 and 452 of the Pakistan Penal Code, 1860 (PPC) registered at Saddar Police Station, Quetta vide order dated 22nd June, 2012, through instant application has prayed for the same relief.

2. Mr. Manzoor Ahmed Rehmani, learned counsel for the applicant, contended that an earlier bail application i.e. Criminal Bail Application- No.72 of 2012 on behalf of the present applicant was rejected by this Court on 9th March, 2012 and, while rejecting the said bail application a direction was given to the learned trial Court to dispose of the matter within a period of one month, positively, but there is no progress in the case and the compliance of the direction of this Court has not been made, which appears to be shocking and scandalous. The main emphasis was, however, laid by learned counsel for the applicant on the delay, which has occurred in concluding the trial. In this respect, it was contended that the applicant had earned statutory right to be enlarged on bail as per recent amendment introduced in section 497 of the Criminal Procedure Code 1898 (Cr.P.C.). In this connection, it was contended that the applicant was arrested on 18th December, 2009 and since then he is behind the bars and that the delay in the trial could not in any way be attributed to the applicant. Learned counsel in support of his contention placed reliance on the judgment passed by this Court on 11th August, 2011 in Criminal Acquittal Appeal No.219 of 2005.

3. Miss Sarwat Hina, Additional Prosecutor-General (APG), representing the State, has confirmed from the record that the applicant is not a previous convict and the case, in which he had been involved, resulted in his acquittal. She has also not been able to show that the trial of the instant case had been delayed for over two and half years due to his conduct, however, the bail was opposed on ate ground that the trial has started and its conclusion is within sight, because material witnesses have already been examined and case is now fixed for recording the statement of Investigating Officer. It was, therefore, contended that the applicant cannot insist for bail even on statutory ground.

4. I have considered the arguments addressed at the bar from both sides. The record of the trial Court shows that the real reason, which weighed with the Additional Sessions Judge was to the effect that the applicant, who had been involved in the murder of complainant's father was considered to be a desperate and dangerous criminal, but by holding so, the trial Judge has over-sighted the fact that the case, in which he had been involved, resulted in his acquittal.

5. For better understanding of the controversy, it would be advantageous to reproduce here in below the newly-introduced provision of law i.e. section 3 of the Act VIII of 2011 dated 20th April, 2011, which speaks as under:--

"3. Amendment of section 497, Act V of 1898. ---In the said Code, in section 497, in subsection.(1)-

(i) in the first proviso, after the word "Years" the words "or any woman" shall be inserted;

(ii) the second, third and fourth provisos shall be omitted: and

(iii) in the fifth proviso, for the full stop at the end a colon shall be substituted and thereafter the following provisos shall be added, namely:

Provided further that the Court shall, except where it is of the opinion that the delay in the trial of accused has been occasioned by an act or omission of the accused or any other person acting on his behalf direct that any person shall be released on bail

(a) Who, being accused of any offence not punishable with death, has been detained for such offence for a continuous period exceeding one year or in case of a woman exceeding six months and whose trial for such offence has not concluded, or

(b) Who, being accused of an offence punishable with death, ha. been detained for such offence a continuous period exceeding two years and in case of a woman exceeding one year and whose trial for such offence has not concluded:

Provided further that the provisions of the forgoing proviso shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life. "

It seems that the real reason which weighed with the trial Court, was to the - effect that the applicant, who had been involved in the murder of complainant's father was considered to be a desperate and dangerous' criminal, but by holding so, the trial Court has over-sighted the fact that / the case, in which he had been involved, resulted in his acquittal, thus, after getting acquittal order from a competent court of law, by no stretch of imagination he could be termed as desperate and dangerous criminal.

6. I am of the considered view that the law, as it stands now, clearly creates a statutory benefit for all citizens, who are accused of having committed an offence, which cannot be withheld, unless it is shown that a person is disentitled to the benefit by virtue of the law itself. To my mind, the Act-VIII of 2011 is in line with the fundamental rights as provided in Article 9 of the Constitution of Islamic Republic of Pakistan, 1973, which provides that no person shall be deprived of life or liberty, save in accordance with law. It is also in line with Article 10-A thereof, which guarantees an opportunity of fair trial.

The concept of a fair trial necessarily includes a trial without inordinate delay, because it is right of every accused to stand trial within a reasonable time. It is proverbial that justice delayed is justice denied. Inordinate and scandalous delay in trial, which in the present case is two and half years, is not only abuse of the process of law and of Court, but also violation of fundamental right of access to justice.

7. As has been observed, the trial has not only commenced, but it is likely to be concluded in the near future and learned APG positively undertakes that the trial of the applicant will be concluded under all circumstances by the trial Court within one month from the receipt of this order.

8. In view of the statement made by learned APG in the Court, the trial Court is directed to conclude the trial within one month from receipt of this order even if the case is to be heard on day to day basis under intimation to the Registrar of this Court. The trial Court shall also furnish report as to why no steps were taken to expedite the trial Court as alleged by learned counsel for the applicant. In case, the trial is not concluded within one month from receipt of this order, the applicant shall be deemed to have been granted bail in the case on expiry of one month's period and will be enlarged on bail by the trial Court on furnishing one surety in the sum of Rs.200,000 (Rupees two hundred thousand only) and PR of the like amount to the satisfaction of the trial Court.

Application is, accordingly, disposed of in terms thereof.

MWA/69/Q ???????????????????????????????????????????????????????????????????????????????????????? Order accordingly.