Hashim (Applicant) VS The State (Respondent)

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ORDER SHEET

IN THE HIGH COURT OF SINDH , KARACHI

Cr. B.A. No.402 OF 2009

b Date

For hearing.

Order with signature of Judge

r Mr. Ajab Khan Khattak, for the applicant.

I Mr. Fazal-ur-Rehman Awan, for the State.

This is second bail application under Section 497, Cr.P.C., moved by applicant Hashim in F.I.R. No.85/2003 of Police Station Industrial Area, New Karachi. The accused has been charged with the offences under Sections 396 & 397,PPC.

The applicant had moved the first bail application before this Court on 23.04.2008, which was, however, rejected on 13.06.2008 and the leamed trial Court was directed to conclude the case within a period of six months. Since then nearly one year has passed but the case has not been concluded.

Leamed counsel for the applicant submits that this is a case of hardship as the proceedings ofthe case have been inordinately delayed and that the State has no right to keep the applicant behind the bar for an indefinite period without deciding the case against him. Learned counsel for the applicant has relied upon various authorities in support of his submission.

\ Learned counsel for the State submits that this is an extremely serious case, whereby the applicanUaccused has committed murder and dacoity, which offence carries the death penalty. He further submits that it may prejudice the prosecution case if bail is granted at this stage. He has submitted that the best course for this Court would be to refer this case back to the leamed trial Court with the direction to complete the case within stipulated period.

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.*& 7t\ I have heard learned counsel for the applicant as well as the leamed State Counsel, reviewed the documents on file and have also carefully examined the legal authorities.

Firstly, I would like to mention that no doubt this is a very serious case and in such cases bail is rarely granted, especially where tlere appears to be strong linkage of I *" accused with the crime. However, it is the obligation of the State to prove its case against the accused beyond any reasonable doubt and rtil that time, the accused is presumed to be innocent. In rejecting the first bail application by order dated 13.06.2008, this Court made the following observations.

"The expeditious trial is the right ofevery accused and this is shocking that for the last about five years only the complainant has been examined and record shows that he was examined t 14.02.2007 and Mr. Siddiqui informed the Court that thereafter, no PW was examined, which is apparently shocking."

In essence, it is shocking that there is undue delay in the trial of the case and it has not been concluded within a period of six months as directed by this Court vide order dated 13.06.2008. Nearly a year has passed yet the trial has not been completed.

This is in violation of the Court order dated 13.06.2008. I have reviewed the case diaries provided by the counsel for the applicant, which indicate that since the passing oforder dated 13.06.2008, the case before the trial Court was fixed for hearing on 15 ,dates. However, nearly on all these occasions the case has not proceeded due to no ) fautt of accused. Out of 14 prosecution witnesses, only 4 witnesses have been examined. Under the old law, an accused could be granted statutory bail if the trial had not been concluded within two years, provided that delay in conclusion of trial was not on account of any fault of accused. Such a provision has now been excluded and it seems that in the absence of this provision, the prosecution have little incentive to proceed with the cases expeditiously. The accused is injail for the last six years and I see little prospect that the trial could be concluded in the near future, even ifthis Court +I. were to give further directions.

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t The Constitution of Pakistan provides that no person should be deprived of liberty unless in accordance with law. The law, however, should be effective. If a hifl l\ person is detained under the law then he should be tried and dealt with expeditiously.

To detain some one for over six years, as in this case, is an abuse ofprocess oflaw by the prosecution, whose obligation is to ensure that the trial is expeditious. I place . reliance on numerous case-law cited by leamed counsel for the applicant specially the case of HIDAYATULLAH v. STATE (2007 yLR 13l l), wherein it has been held as under:

"S. 497--Penal Code (XLV of 1860), Ss-302, 337-H(ii), t4B,l4g,ll4 & 34-Bail, grant of -Accused was behind the bars for the last about four years but case had not proceeded despite direction ofHigh Court to the Trial Court that trial be concluded within ninety days-Delay in prosecution of the case though no more was available as statutory right of accused but grant of bail on the ground of inordinate delay in conclusion of trial had always been considered--Expeditious and fair trial was the right of every accused---Purpose of trial was not to punish accused without trial--Inordinate delay, if not explained, would amount to abuse ofprocess oflaw even in cases ofcapital punishment- --Where directions of the Superior Courts were not complied with without any justifiable reason, same could fumish a valid ground for grant of bail---Order of the High Court having not been complied with and the accused in counter case having got bail, accused was also entitled for concession of bail on the ground of hardship--Accused was admitted to bail, in circumstances."

From the above authorities, it is clear that bail has been granted in hardship cases even in the cases where the offences were of serious nature.

Based on the facts and circumstances ofthis case and undue delay in trial due

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I to no fault of accused, I hereby admit the applicanuaccused on bail on his furnishing surety in the sum of Rs.200,000/- (Rupees Two Hundred Thousand) and PR bond in the like amount to the satisfaction of the trial Court.

Notwithstanding the above order, this should have no reflection in prosecution case on merits

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This bail application stands disposed of \r-+1 Judee I

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