Abdul Qadir @ Qadoo (Applicant) VS The State (Respondent)

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IN T-I{E HTGH C'OURT OF SINDH

C RCUtrT COURT HYDERABAI) Before:

N{r. Justice Mohammad Karim l(han Agha

Cr. Bail A. No.S-l239 of 2015.

-t' Abdul Qadir alias Qadoo

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'fhe State

Abclul Qadir alias Through Mr. Ahsan Gul Oahri Advocate Qadoo ap lioanl llespondent l.he Through Mr. Shahid A. Shaikh, A.P.G. State Cornplainant Through Mr.Abdul Hameed Janrali, Advocate Date of hearing 03.04.2017

Date of Order 06-a4-2017

ORDER'

Moiramnmad liarim Khan A gha, J.-B y this order I propose to dispose of the above mentioned post anest bail application'filed by Abdul Qadir (the applicant).

2.The brief facts of the oase as per FIR60 of 2012lodged atPS Pabjo District Shaheeed Benazirabad U/S 3A2,331 (I{) (iD 34 PPC is that iho appiicant is accused, amongst other things, of murdering Ra.fique oil account of enmity by making straiglrt firing upon him rryith a clouble barrel shot gun whilst o;ther co-accused Abdut Shakoor and Abdul Rasool made aerial firing.

3.The applicant was arrested on 15-10-12 atd has re,qained in' custody l.o clale being a period of about 4 years and six months and

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hence he has moved this application for the ,grant of bail on statutory grounds under 5.497 Cr. PC. In support of his contentions he has placed reliance on dairy sheets of the learned trial court from 30-10-12 until 17-05-2016.

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4.He has also placed reliance on the following authorities Muhammad Afzal Butt alias APHI V. The State and others (2015 S C M R 1696), Abdullah v. The State (1985 S C M R 1509), Fida Hussain v. The State and others (P L D 2002 Supreme Courl 46), Waheed alias Nahed v. The State 2013 Y L R 335), Naimat Khan v. The State 2013 (P Cr. ! J ll62);Abdul Razak Zangejo v. The State (P L D 2012 Sindh 2lB), Syed Hasnain Raza Zaidi v. The State (2012 Y L R 1496), Rustarn v. The State (P L D 1986 Karachi 561), I(huda Bux'alias l(hudo and 2 others v. The State (lggl P Cr. L I gll), Syed Muhammad Ali Hashmi v. The State (1992 P Cr. L J 1178) and Karimi Rahmatullah v. The State (1993 P Cr. L J 733).

5.On the other hand learned APG has opposed the grant of bail on statutory grounds to the applicant on the grounds that the applicant had caused some of the delay, the seriousness oF the offense, the direct and specific role given to the applicant and the fact that the complainant and 2 other PW's had already given evidence and that the trial was likely to conclude shortly.

6.Learned APG placed reliance on the following authorities Sher Ali alias Sheri v. The State (1998 S C M R 190) and Murad ur Rehman v. The State and another (2014 P Cr. L J 61).

7.Learned counsel for the complainant also opposed the grant of bail on statutory grounds to the applicant and largely adopted the arguments of the APG. V,l

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8.I have perused the record, considered the submissions of learned counsel and the relevant law along with the authorities cited by them. 1

9.It is clarified that I have only made a review of the dairy

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sheets and the relevant law and nothing in this order shall have any bearing on the trial proceedings which shall be determined. on merit by the learned trial court after considering the evidence before it.

10.s.497 cr.P.c. in so far as it relates to bail on'statutory grounds is set out belbw in bold for ease of reference:

"497. When bail may be taken in case of non-bdilable offence. (1) when any person accused of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police-station or appea-rs or is,brought before a a- Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years. Provided that the Couft may direct that any person under the age of sixteen yea.rs or any woman or any sick or infirm person accused of such an offence be rdleased.oir bail.

Provided fhrther that a person accused of an offence as aforesaid shall not be released on bail unless the prosecution has been given n<itice to sh.ow cause why he shoulcl not be so released.

Provided further that the Court shall, except rvhere it is of the opinion that the delay in the trial of the accused has been occasioned by any act or omission of the accuserl 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 u,ith death, has been detained for such offence for a continuous period exceeding one year or.in case "J.,o

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of a woman exceeding six months and whose trial for such offence has not concluded; or

(b)who, being accused of any olTence punishable with death, has been detained for such offence for a cohtinuous period exceeding two years and in case of a woman exceeding one year and whose trial for such offence has not conclu<led;

Provided further that the provisions of the foregoing 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 ot' imprisonment for life." (bold added)

I 1. It is clear from thb above section. that it will apply even to cases which may lead to the death sentence being imposed such as the instant case.

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12.The following limbs need to all be satisfied in the instant case:

(a)the delay in concluding the trial has not been caused by the applicant or anyone acting on his behalf and

(b)the applicant has been in detention fbr a continuous period of 2 years and

(c)the applicant has not been previously convicted tbr 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 punisheble with death or imprisonment for Iife.

13.According to the applicant a review of the diary sheets reveal that from 30-10-12 until 17-05-2016. (i.e. approx 3 years and five months) the applicant has only been responsible.for 3 delays. The first on 18-09-20i3 which lasted apprcx 3 weeks, ihe second on

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12-12-2013 which lasted approx 2 weeks and the third ori 15-07- 2Ol5 again for approx 2 weeks. Thus, out of order sheets amounting to 3 years and five months the applicant has been responsible for delay'for only about 7 )veeks which leaves ,aPprox 3 years and 3 months detention on account of no fault ol'his own.

14.I have also reviewed the diary sheets which'potentially show that delay has also and in addition been caused by the applibant on 25-11-20L3 for 2 weeks,29-01-2014 for 2 weeks, 02-04-2014 for 2 weeks,16-04-2014 for 2 weeks, l9-03-20i6 for 2 weeks, 09- 4-2016 for two weeks and 23-4-2016 for two, wqe[<s.. .Making approx 14 weeks which when added to the earlier mentioned 7 weeks makes approx .21 weeks i.e. approx 5 months. Such adjournments have been requested on 10 separate occasions.out of approx 99 hearings, It is also observed from the order sheets that the two co-accused (on bail) who are the brothers of the applicant + have also caused delay through their absence on bq-tO-ZOt6 tbr 3 weeks which may have been in collusion r,vith the applicant since they are his brothers in order to string the case out.

15.Thus, out of the approx 3 years and five months covered by the order sheets it appears that the applicant has been r:esponsible for approx 5 months delay which would only leave 3 years continuous detention due to no fault of his own.

16.The order sheets end on 15-05-2016 and thus the applicant has been in detention for an additional period of 11 months since the date of the last order sheet (it being observed that ireither the State nor the complainant alleged that the applicant cause<i any delay in this period) rvhich would mbke a total of approx 4 years in detention due to no fault of the applicant.

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17.Thus, in my view baserl on the materidl on reiord the applicant has spent approx 4 years in detention on account of no fault of his own or anyone acting on his behalf.

18.Neither the State nor the complainant has placed aily

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evidence on record that the applicant has been previously convicted for an offence punishable with death or imprisonment for life or is a person who, in the opinion of the Coutl, is a hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life.

19.I accept that when considering the grant of bail on the grounds of statutory delay it is not a simple mathematic calculation alone which needs to be undertaken but tire entire conduct.of the applicant and the proceedings are to be considered. the order sheets do reveal that some delay has been caused on the part of the applicant but a review of the order sheets reveal tirat the clelay was rnostly attributable to the prosecutioniState or fot' circumstances beyond the control of the applicant such as case propert-v not being produced, PW's not being present, PO on leave. larvyers strikes, adjourned due to want of time etc. I am of' the view. that the applicant should not.suffer on account of these shorl. comings of the state and the prosecution especially based on the particular facts and circumstances of this case where even after taking into accbunt any delay caused on the applicants part he has still a remained in detention for approx 4 years without the trial being completed. In my vier,v in a murder case involving 3 accused (none of whom were absconders) and 1 1PW's 4 years arrd 6 months rva-s more than sufficient time to conclude the trial provided that no substantial delay was caused by the applicant or any of the other accused as in this case.

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20.|t is true that the applicant bas been ctrarged with a very serious offense and has been given a direct and specific role however in my opinion this does nbt preclude the right to the grant of bail on the grounds of statutory delay. This is because a person is innocent until proven guilty and it is the duty of the state to carry out expeditious prosecutions rather than to allow the accused to languish in jail for years on end with out conclusion of his trial especially when little, if any, delay has been caused by tlae applicant or some one else acting on his behalf.

21.It is also observed that the 2 co accused in the case; although given the lesser role'of aerial firing have been on pre arrest bail granted by the trial court for a considerable period of time which the State did not appeal, and that they have not absconded and are regularly appearing before the trial cout't. There are also a further 9 PW's to be examined which under the circumstances and based on the history of the case in my view the trial is unlilcely to.be completed within the next 6 months and as such it is likely to be an exercise in futility giving such a direction. It is also significant in my view that the learned trial court denied the applicant bail on statutory grounds on 08-09-2015 (approx 1B monrhs ago) and crid not allude to any delay caused by the applicant but rather largely dismissed the application (merits and statutory ground) on the ground of the applicants role and the fact that the complainant and one PW had already been examined. lt appears that since this 18 months period only one further PW has been examined which tends to show the snails pace of the trial ancl that it is unlikely to be concluded in the near future

22.In respect of the case law cited by the State the case of Murad ur Rehman (Supra) is of little assistance as in tbat case it

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found that the applicant was instrumental in the which is not leial the position in the instant case. Whereas the case of Sher Ali alias Sheri (Supra) tends to go against the State based on ihe lrarlicular' facts and circumstaneei of this case since it provides at P.200 Para i0 as under:

a "10. The above case-law indicates that. under the third proviso to subsection (1) of section 497, Cr.P.C" an accused is entitled to bail as a matter of right if the statutory period mentioned either in clause (a) or clause (b) has expired and the trial has not been concluded in view irf the use of the word 'shall'. This right can be defeated only if the State or a complainant sholvs that the delay in trial is attributable to the accused person concerned. Once it is shown the above right is forfeited." (bold added)

23.A delay as long.as the one in this case (over { years) due to little fault on the part of the applicant also in my view appears to be unconscionable as was held by the Hon'ble Supreme Court in Abdullah's case (Supra) at P.1510.It is to be noted that bail was granted in this case when the petitioner was responsible for 5 delays and had been in custody tbr 2 ancl half years as opposed to 4.6 years in this case

"We had given notice yesterday to the Advocate-General, because we were disturbed by the gross delay in the hearing of the case and.after examining the order sheet produced by Mr. Hayat Junejo, the learned Advocate-General admitterl that the petitioner had been in custody for more than two years. He further drew our attention to. the fact that the hearing of the case had been delayed on five occasions at the instance of the petitioner. 'Ihat is true, but even if the period for which the case was adjourned at. the petitioner's request are excluded the petitioner has been behind bars for more than tr,vo and a half years. Yet the leamed Advocatc- General is not able to give any assurance as to when the r:ase would be heard. We aree therefore, satis{ied thaf the petitioner is entitled to bail, because the delay in the hearing of the case, which is not due to his fault, is unconscionable. Accordingly, after hearing the .learned

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Advocate-General, we have conveded the petition into an appeal, set aside the impugneci order dnd leledsed the petitioner on bail." (bold added)

24.Likewise in the.case of Abdul Razzak (Supra) it was held as 'delay under by this court in terms of undue in deciding a base in terms ot'statutory bail

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"Expeditious and fair trial is fundamental right of accused persons. The intention of law is that criminal case must be disposed of without unnecessary delay. It will not be difficult to comprehe,nd that inordinate delay in imparting justice was likely to cause erosion of public confidence in the judicial system .on one hand, ancl on the other hand, it was bound to create a sense of helplessness and despair and feelings of frustration and anguish apart form adding to their woes and miseries. Reference rnay bc made to 2003 MLD 19. At this juncfure, I rvould also like to refer AIR 1941 Sindh 186, in which it was held that what the law contemplates is due diligence and impartiality in the prosecution of the criminal cases. lt is not the law that a criminal case should linger on. Similarly in AIR 1942 Calcutta 219, it was held 'that policy of criminal law' is to bring the accused persons to justice as speedily as possible so/that if they are found guilty they may be convicted anit il' they are found innocent, they may be acquitted and discharged. In 2000 SCMR 107, the Hon'ble Supreme Courr held that object of criminal prosecution is not to punish arr under trial prisoner for the. ofTence alleged agairrst him. The object of criminal trial is that the accused is rirade to face the trial and answer the criminal charge against hirn." (bold added)

25.In addition after an exhaus.tive study of the relevant Supreme and High Court authorities on the grant of bail on the grounds of statutory delay under 5,4g7 Cr.PC this Court irr the case of Niamat Khan (Supra) held as under

"16. From the perusal of above quoted judgments of the Honorable Supreme Court of Pakistan, it will be seen that through the amendment by section 3 of Act VIII of 2011 dated 2A-4-2011 the applicant has been given independent right for grant of bail on the ground of statutory delay subject t, 't'

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ess to certain conditions provided therein. trt has been the consistent view of the Honorable Su;ireme .Court of Pakistan while dealing with the bail application on the ground of statutory delay and the Honorable apex Conrt had time and again ruled that above quoted newly-added amendment in the section 497, Cr. P.C. is statutory right which cannot be denied under the discretionary power of the Court to grant bail. The right of any accused to get bail under the aforesaid amendment in section 497, Cr.P.C. is not left to the discretion of the Court hut is controlled by that provision. The bail under the nervly- added proviso under section 497, Cr.P.C. can tre refused to an accused by the Court only on the gr.ound thar the delay in the conclusion of the trial had occasioned on accoutlt of any act or omission on the par-t of the accused or any person acting on his behalf. The bail under the aforesaicl provision can also be refused by the Courl if the accused is 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 any act of terrorisni punishable with death or imprisonment for life." (bold added)

26.Thus, based on the particular facts and circumstances of the case and the application of the relevant law, i.e. 5.497 Cr.pC. as interpreted by the courts the applicant is enlargecl on post arrest bail on statutory grounds subject to him furnishing a solvent suret-v of RS10 (ten) lacs and PR bond in the like amount to rhe satisfaction of the Additional Registrar of this Court.

This bail application is disposed of in the above terms Hyderabad ,,] l--,tt / .? Dated: A6-04-2017 f-/-*"(-/ i/ (..

JUDGE

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