GUL ZAMIN Versus STATE
ORDER
1. Applicant Rafi Muneer who is detained in F.I.R. No.21 of 1993 under Article 3/4, Prohibition (E.H.O.). 1979 registered at Police Station (P.N.C.B.), Karachi, has once again approached this Court for bail. The case against applicant and co-accused is pending trial in the Court of Sessions Judge (West), Karachi. The first bail application moved on behalf of the applicant in the trial Court was dismissed on 28-6-1993 and against the said order applicant filed Criminal Bail Application No.577 of 1993 which was disposed of by a learned Judge of this Court on the undertaking given by the learned A.A.-G. that some of the important witnesses against the accused will be examined within one month. The bail application was dismissed but the accused were left free to repeat the bail application before the trial Court. It seems that because the witnesses as undertaken by the learned A.A.-G. were not examined, a second bail application was filed before the trial Court on behalf of the applicant and co -accused, which was dismissed on 28-9-1993. Against said order the applicant filed Criminal Bail Application No.937 of 1993 before this Court, which was heard on 28-11-1993 when the orders were reserved. While going through the case file it was considered necessary that the bail application may be reheard for clarification of certain points and it was accordingly fixed for rehearing on 5-12-1993. On this date, the learned Advocates appearing for the applicant made a statement that they would not press the application if a direction was given to the trial Court to examine P.W. Aamil at an early date. The bail application was dismissed as withdrawn and a direction was given to the learned trial Court to examine P.W. Aamil within a period of one month, leaving it open to the applicant to repeat bail application before the trial Court if so advised.
2. The applicant then repeated bail application before the trial Court after the evidence of P.W. Aamil was recorded but by order, dated t 1-1-1994 the trial Court rejected the application. Against such order of the learned Sessions Judge, the applicant filed Criminal Bail Application No.42 of 1994 before this Court, which was dismissed on 3-2-1994 with direction that the learned trial Court shall dispose of the case at an early date, within two months if possible. Because the trial was not concluded as desired by this Court bail application was repeated on behalf of the applicant before the trial Court, but this time on the ground of illness as well as on the ground that the applicant had been in jail for over one year and completion of the case was nowhere in sight. It is in these circumstances that the present bail application has been filed before this Court on the ground of illness of applicant as well as on the ground of delay in conclusion of trial. On 27-6-1994 when this bail application came up for hearing, applicant was referred to Medical Superintendent, Civil Hospital, Karachi for examination and report. A report from the Medical Superintendent, Civil Hospital, Karachi dated 29-6-1994 was received but it was considered necessary to call Dr. Asadullah Khan Soomro of Civil Hospital, Karachi to bring the case history of the patient and reports of various tests. The said doctor appeared on 7-7-1994 but he was unable to show the basis on which certificate dated 29-6-1994 was issued by him. The arguments were, however, heard on 7-7-1994 and the orders were reserved. By order, dated 12-7-1994, in view of the varying medical reports in respect of the applicant, it was desired that a Medical Board be constituted by the Director, N.I.C.V.D., Karachi to examine the applicant and submit a detailed report about applicant's present condition. The Medical Board was accordingly constituted and a report dated 24-8-1994 was submitted which indicates that various examinations revealed no evidence of valvular or ischaemeic or hypertensive heart disease.
3. Learned Advocate for the applicant did not press bail on the ground of illness but has pressed it on the ground of delay in disposal of the case. His main contention is, that in spite of various directions, particularly the one contained in the order of this Court, dated 3-2-1994 while disposing of Criminal Bail Application No.42 of 1994, requiring the trial Court to dispose of the case at an early date, within two months if possible, such direction is not complied with although more than seven months have passed eversince. It has been argued on behalf of the applicant that on irrelevant grounds the learned trial Court had been adjourning the case and such approach indicates that there are no prospects of the trial being concluded in near future. He has also referred to the order, dated 8-9-1994 passed by the learned trial Court when the evidence of the Investigating Officer Arshad Islam Shaikh was being recorded and on a legal objection by the defence counsel that the Investigating Officer who intended to produce certain documents and letters from his file could not do so as such documents were obtained after submission of challan, the learned trial Court adjourned the case to 29-9-1994 for resolving the controversy with regard to the admissibility of such documents. It is contended by applicant's learned Advocate that although the defence counsel had objected to the production by the Investigating Officer of some documents or letters from his file he was willing to argue the matter on the next day but the trial Court fixed the next date after 21 days. Giving such long dates, as argued amounts to disrespect shown by the learned trial Court for the orders of the superior Courts. Applicant's learned Advocate frankly conceded that the ground of statutory delay in the conclusion of trial though not available to the applicant, yet, if the Court comes to the conclusion that such delay is shocking or scandalous the bail could be granted on such grounds. In support of such contention learned Advocate has referred to the cases of Akhlaq Ahmad v. The State 1977 PCr.LJ 196, Faiz Ahmad Khan v. Passkal alias Pasa and another 1975 PCr.LJ 643, Sanam Shah and others v. The State 1986 PCr.LJ 2947 and unreported cases of this Court in Bail Application No. 1018 of 1993 (1994 PCr.LJ 1611) Shah Muhammad and others v. The State Criminal Bail Application No.873 of 1993 Siraj Ahmad v. The State and Criminal Bail Application No.9 of 1994, Ghulam Haider and others v. The State. In all the cited cases the delay in disposal of the cases was considered a ground for grant of bail and bails were granted.
4. Mr. Ikram Ahmad Ansari, learned Dy. A.-G., has opposed this application and has referred to various dates of hearing before the trial Court on which dates either the defence counsel was absent or the case was adjourned because the R&P was called by this Court during the hearing of a quashment application filed on behalf of the applicant. He has contended that the delay in disposal of the case has been due to the conduct of the applicant. The learned Dy. A.G. was asked to explain why on 8-9-1994 when the Investigating Officer was being examined and an objection was raised by the defence counsel to the production of certain documents from his file, such objection was not resolved on that very day but case was adjourned to 29-9-1994 for "arguments on controversy and cross", as observed by the learned Sessions Judge in his order, dated 8-9-1994. At this stage Mr. Rao M. Shakir Naqashbandi, Advocate who is appearing as Special Prosecutor before the trial Court stood up and stated that he too had not agreed to such a long date being given particularly when there were orders of this Court for early disposal of the case. The learned Dy. A.G. further argued that applicant is involved in an attempt to smuggle 'a huge quantity of narcotics from Pakistan and on merits he is not entitled to bail.
5. I have considered various contentions raised on behalf of the parties and have perused in detail all previous orders passed on the bail applications moved on behalf of the applicant. On 3-2-1994 the trial Court was directed to dispose of the case at an early date and within two months if possible. I have gone through various case diaries of the trial Court and find that not only that the direction of this Court was not complied with in letter and spirit but case was frequently being adjourned on vexatious grounds. No impossibilities are reflected in the orders of the trial Court in the diary sheet to warrant delay in disposal of the case. This by itself, in my view, would be a ground for grant of bail as held in a number of cases above-referred. Although the third and fourth provisos to section 497 of Cr.P.C. were omitted, the effect of the omission is that the pre-amendment position of the law stands restored, as observed by a learned Judge of the Lahore High Court in the case of Khalid v. The State 1994 PCr.LJ 12. In the said case it was further observed as under:--
6. "------The deletion of the 3rd proviso does not mean that the law-makers have consciously abolished delay as a ground for bail and that a Court of law is not competent to grant bail on the ground of delay in conclusion of trial. If such a view is adopted, it would provide legal cover to delays and enable the prosecution to keep undertrial prisoners behind the bars indefinitely, may be for five years or more. This case never be the intention of the law. The law-makers are deemed to be aware of the salutary principle of administration of justice that 'justice delayed is justice denied' and cannot be burdened with the intention of protecting delays in trials and thereby prolonging the agony of the undertrial prisoners."
7. From the above it is abundantly clear that the delay in conclusion of trial beyond a period of one year and particularly when directions were given to the learned trial Court to dispose of the case at an early date is not only inordinate but scandalous as well. In the circumstances I am inclined to grant bail to the applicant and he shall be so released if he furnishes two sureties each in the sum of Rs.10,00,000 (Rupees ten lacs) with P.R. Bond in the like amount to the satisfaction of the learned trial Court.
8. H.B.T./R-295/K Bail granted.