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Criminal Bail Applications Nos. 1160 and 1161 of 1984, decided on 9th December, 1984.

---S.497, proviso 3(b)‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)‑‑Bail‑‑Delay in trial‑‑Accused arrested in two cases of Harabah after about one year‑‑Name of accused not appearing in First Information Reports‑‑In one case only charge found and other case fixed for framing of charge on different dates after about a year‑‑Accused not responsible for delay in trial‑‑Held, in cases of offence not punishable with death, grant of bail after statutory period of one year, is right of accused‑‑Accused granted bail in both cases in circumstances.

Abdul Qayoom Shaikh for Applicant.

M. I. Memon, Addl. A.‑G. for the State.

Two Sessions Cases (Nos. 316/84 and 317/84) against the applicant under section 17(3), Hudood Property Ordinance, 1979 are pending in the Court of Additional Sessions Judge, Karachi. The bail applications in both the cases were rejected on merits by this Court (Cr. Bail Nos. 278/84 and 279/84). The applications have been repeated on the sole ground of delay in trial. I, therefore, propose to dispose of both the applications by a single order as identical point in both the cases has been raised. The applicant was arrested on 25‑11‑1983 and admittedly he has remained in jail for more than a year and offence for which fie is charged is not punishable with death. Therefore, he has claimed bail as a matter of right as provided under section 497 Proviso 3(b). It is clear from the order of the learned Additional Sessions Judge that there is no delay on the part of the applicant. The learned Additional Sessions Judge has mentioned in his order that in Sessions Case No. 317/84 charge has been framed on 24‑9‑1984 whereas Sessions Case No.316/84 is fixed for framing charge on 10‑11‑1984. He has stated in his order that both the cases are still fresh and no evidence has so far come on record. He has rejected the bail application on the ground that the applicant is involved in two similar cases of "HARABAH" therefore, he seems to be hardened /desperate and dangerous criminal. He has relied on the amendment brought in section 497(1) Proviso (3)(a).

Mr. Muhammad Ibrahim Memon, Addl. A.‑G. has frankely stated that he has no objection to the grant of bail. He has argued that there is nothing on record to show that applicant is a previous convict or hardened criminal.

No doubt the applicant has been involved in two cases of "HARABAH" but it has been pointed by the‑ Additional Advocate‑General that both the cases are of 1982 and applicant was arrested after about a year and his name does not appear in the First Information Reports. I do not like to go into the merits of the case as I had already dismissed his application on merits, but it is suffice to say that applicant is not responsible for the delay in trial. I do not agree with the observations of the learned Additional Sessions Judge that case is fresh one when the legal position is that in cases of offence not punishable with death the grant of bail after the statutory period of one year is a right of the accused. In these circumstances it is the duty upon the trial Court to proceed with the cases of this nature without any delay. In both the present cases delay appears to be on the part of the Court in not proceedings with the cases as in one case only charge has been framed and another case against the same accused was fixed for framing charge on different date after about a year. On this I invite attention of the trial Court to a case of Muhammad Yaqoob alias Qoobi v. The State reported in P L D 1984 S C 1 and relevant para of the order is reproduced as under:‑

"Before parting with the case, however, we would like to observe that we 'are disturbed to notice the number of adjournments given by the learned Additional Sessions Judge in a murder trial. Murder trials are required by the High Court Rules and Orders to be completed with utmost expedition. But the Court's hands are tied and it cannot proceed even if one of the accused is absent.

If the learned trial Judge in this case feels that the accused are absenting themselves deliberately in order to delay the completion of the trial, he may consider cancelling their bail. If, on the other hand, the jail authorities fail to produce the accused on any of the dates of hearing the learned trial Judge, may consider taking action for contempt against them."

A reference is also made to a case of Muhammad Rafique v. Muhammad Rafique and another reported in P L D 1983 S C 426 and I quote the relevant para of the order:‑

"We regret to note that the manner in which this trial was conducted by the learned Sessions Judge and the fact that although it was commenced in April, 1981, it has not yet been completed. It is such cases that are cited as examples of inadequacy of the present Judicial System and provide an opportunity for the criticism that it has become unworkable. The fact, however, is that the Sessions Judges or Additional Sessions Judges are not following the instructions issued by the High Court in its Rules and Orders with respect to trial of Session cases and, in some cases, are actually flouting them. A sense of complacency appears to be prevailing in the subordinate judicial Officers which is probably rested in the belief that no action shall ever be taken against, any of them. This impression can, however, be removed and the situation rectified quickly by a determined exercise of its supervisory jurisdiction by the High Courts. If a few incompetent officers are proceeded against for inefficiency, there shall be rapid and manifest improvement within a short time. This shall not only salvage the judicial image but also afford to litigants the much desired relief."

I also invite the attention of the trial Court to a case of Naseer Ahmed v. Dil Muhammad and 2 others reported in 1982 S C M R 1006.

I am of the considered view that this is a fit case for bail. Therefore, I admit the applicant to bail in both the cases (Sessions B Cases Nos.316/84 and 317/84) on furnishing one surety in the sum of Rs.50,000 in each case separately and P.R. bonds in the like amount to the satisfaction of the Xth Additional Sessions Judge, Karachi.

I direct the trial Court to complete these cases within three months and send fortnight report about the progress of the cases to this Court.

M.A.K. Bail granted.

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