Wednesday, 17 October 2018

Delay in conclusion of Trial is ground for Bail

PLJ 2018 Cr.C. 730 (DB)[Lahore High Court, Multan Bench]
PresentSardar Muhammad Sarfraz Dogar and Asjad Javaid Ghural, JJ.
STATE, etc.--Respondents
Crl. Misc. No. 5485-B of 2017, decided on 6.12.2017.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Control of Narcotic Substances Act, (XXV of 1997), S. 9(c)--Bail after arrest allowed--Statutory ground--Allegation of recovery of 10-plastic packets of opium weighing one kilogram each and one packet of 500 grams of opium--Co-accused who driving jeep, lead to recovery of same quantity--Total recovery of 21-Kg--Charge frame but PW’s did not attend Court even issuance of Non-bailable warrants--Delay in conclusion trial not on part of accused--Bail allowed.                                                                     [P. 731] A
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--PW’s attendance before trial Court, even issuance of non-bailable warrants of arrest, PW’s did not turn up for evidence--Prosecution filed application u/Ss. 360/540-A, Cr.P.C. just to prolong case.          [Pp. 731 & 732] B
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 51--Bar in granting bail--Even bail can be granted in offences punishable with life imprisonment--To protect liberty of citizens, guidance be taken from provision of S. 497, Cr.P.C. in granting bail.
                                                                                              [P. 732] C
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Any delay in conclusion of trial, would amount to denial of justice or denial of fundamental rights--Speedy trial.                                                                                        [P. 732] D
2017 SCMR 1184 & 1993 PCr.LJ 781, ref.
Mr. Javed Iqbal Hashmi, Advocate for Petitioner.
Ms. Humera Naheed Khan, Special Prosecutor for ANF.
Date of hearing: 6.12.2017.
Through the instant petition under Section 497, Cr.P.C., Muhammad Hussain, the petitioner seeks his release on post-arrest bail in case FIR No. 33/2015 dated 7.7.2015 offence under Section 9(c) of the Control of Narcotic Substances Act, 1997 (“CNSA, 1997”) registered at Police Station ANF Multan, District Multan.
2.  As per contents of FIR, the allegations against the petitioner are that he along with co-accused Muhammad Ayub, were apprehended by the raiding party. Co-accused Muhammad Ayub was driving the jeep who lead to the recovery of 10 plastic packets of opium weighing one kilogram each + one packet of 500 grams of opium from the secret cavities inside the dashboard of the jeep whereas the petitioner also lead to the recovery of 10 plastic packets of opium weighing one kilogram each and one packet of 500 grams of opium from the secret cavity of back door of the jeep making it total 21 kilogams.
3.  Heard. Record perused.
4.  This petition is second of its turn on statutory ground. First Crl. Misc. No. 1335-B/2016 was dismissed on merits vide order dated 30th of March, 2016.
5.  Indeed, the petitioner is definitely nominated in the FIR with a specific role of leading the recovery of 10.5 kilograms opium contained in 11 packets (10 kilograms+500 grams) from the secret cavity of back door of the jeep. This is second post arrest bail moved by the petitioner on the ground of statutory period, Earlier bail application moved by the petitioner was dismissed on merits vide order dated 30.03.2016 passed by this Court in Crl.Misc. No. 1335-B of 2016.
6.  Perusal of the record reveals that the petitioner was delivered copies on 05.01.2016 and the case was fixed for framing of charge for 08.02.2016. On the said date, charge was framed against the petitioner to which he pleaded not guilty and prosecution witnesses were ordered to be summoned. Perusal of the order sheet, annexed with this petition, depicts that the prosecution witnesses did not examine its witnesses from 16.3.2016, to 21.10.2017, meaning thereby, the petitioner’s trial could not be concluded due to consistent absence of the prosecution witnesses who even did not turn up, despite issuance of non-bailable warrants of arrest against them. Learned counsel for the petitioner has drawn our intention to this fact that an application under Section 540-A/360 of, Cr.P.C. has been moved by the prosecution just to prolong the case.
7.  The provision of Section 51(1) of the CNSA, 1997 appears to have been borrowed from the provision of sub-section (1) of Section 497, Cr.P.C. with the only difference that in the latter provision, bail cannot be granted even in offences punishable  with life imprisonment or imprisonment for ten years. The bar on the grant of bail in the latter two categories of offences i.e. life R.I. and ten years’ R.I. were added to Section 497, Cr.P.C. through Act No. XXV of 1974. Although the legislature is competent to enact law, dealing with particular class of offences and offenders in different, manners however, it has to undergo the test of reasonableness and has to be based on sound rationale and the distinction is to be drawn on high moral, legal and sound grounds. There is a long chain of authorities where the superior Courts have always jealously guarded and protected the liberty of citizens in the matter of grant of bail and in all such cases assistance, aid and guidance has always been taken from the provision of Section 497, Cr.P.C. being considered the mother provision of law, regulating the grant of refusal of bail to an accused person in cases triable under the special law, as the said provision of law has successfully undergone the test of all times, since its inception/incorporation in the Code. To have a speedy trial, is the fundamental right, of accused being universally acknowledged. Under the Criminal Procedure Code, smooth methodology and scheme for speedy trial, is provided whether it is held by the Session Court or Magistrate, in recognition of the said right of an accused person. This principle shall apply more vigorously to the trials before Special Courts constituted under the CNS Act, or any other special law as that unnecessary delay, much less shocking one in its conclusion is avoided in all circumstances. Any unreasonable or shocking delay in the conclusion of the trial, before Special Courts, like we are confronted with in the present case, would amount to denial of justice, or to say, denial of fundamental rights, to the accused, of speedy trial. Reliance is placed upon the celebrated judgment of the August Supreme Court of Pakistan in case titled “Imtiaz Ahmed vs. The State through Spaecial Prosecutor, ANF” (2017 SCMR 1194’’).
8.  After careful perusal of all the order sheets of the Trial Court, we are constrained to observe that the learned trial Judge has shown negligent conduct in the progress of the trial, neglecting his obligatory duty to conclude the same in minimum possible time. Majority of the order sheets are written in Urdu version, which appears to be in the hand of the Reader or some other official of the Court, while the learned Trial Judge has put initials thereon. It is also observed by this Court that the learned Presiding Officer did not pay proper attention to conclude the trial and left the fate of the petitioner at the mercy of the jail authorities and the prosecution. It must be borne in mind that custody of under-trial prisoners, including health care and other facilities has to be regulated strictly by the Judges, before whom the trials are pending.
9.  The petitioner is in jail since 7.7.2015, while conclusion of the trial is not in sight because the prosecution witnesses are not turning up, inspite of coercive process has been issued against them, therefore, to expect the conclusion of the trial in the near future, would be nothing but a farfetched dream. In the case titled “Mr. Asif Ali Zardari vs. The State’’ (1993 PCr. LJ 781), A Full Bench of the Sindh High Court, granted him bail on the basis of statutory delay in the trial, the Full Bench of the Sindh High Court at Karachi held that in case of shocking delay in the conclusion of trial, the accused was entitled to the concession of bail on the strength of third proviso to Section 497, Cr.P.C., which view has not been set aside by the August Supreme Court of Pakistan till date.
10.  In view of the above, in our view, the petitioner has become entitled to grant of bail as of right on the basis of shocking delay in the conclusion of trial, more so, if further time is allowed to the prosecution, it would be absolutely impossible to conclude trial before the Trial Court. The petitioner is still awaiting his trial, therefore, has further detention in jail would serve no useful purpose for the prosecution. Accordingly, this petition is allowed and the petitioner namely Muhammad Hassan is admitted to post arrest bail on furnishing bail bond in the sum of Rs.5,00,000/- with two sureties each in the like amount to the satisfaction of the learned trial Court.
11.  Needless to observe that the observations made hereinabove are only tentative in their nature and are strictly confined to the extent of grant of instant bail.
(K.Q.B.)          Bail allowed

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