2024 CCJ 16

Other citations: 2024 PCrLJ 160

[Balochistan High Court]

Before Sardar Ahmad Haleemi, J

Zubair Ahmed—Appellant

versus

The State—Respondent

Criminal Bail Application No. 20 of 2023, decided on 4^th April, 2023.

HEADNOTE

Criminal Procedure Code (V of 1898) —

— S. 497 — Penal Code (XLV of 1860), Ss. 302, 324, 365, 170, 392, 147, 148 & 149 — Bail, refusal of — Delay in conclusion of trial — Desperate and hardened criminal — Scope — Accused sought bail on statutory ground of delay in conclusion of trial — The allegations in crime report depicted that the accused, along with other co-accused persons, had disguised themselves in army uniform and armed with deadly weapons, intercepted a car, and boarded the persons sitting in the car — By means of firing, they murdered two persons and injured three others. Additionally, they abducted two persons, who were later murdered by slaughtering in nearby mountains — The FIR, statements of witnesses recorded under section 161, Cr. P.C., and the statements of eye-witnesses revealed that the accused had been specifically assigned the role of firing upon the deceased and injured persons — Consequently, he had been charged with heinous and non-bailable offenses — A cursory survey of the Trial Court diaries reflected that despite various adjournments due to the Covid-19 pandemic and the presence of prosecution witnesses, the defense counsel sought multiple opportunities to cross-examine the witnesses — The case was also transferred from one district to another due to threats to prosecution witnesses and the lack of security arrangements for the accused — The statutory ground for delay in conclusion of trial did not attract to the case as the accused was a hardened, desperate and dangerous criminal — Further, the record revealed that private witnesses had recorded their statements, and only official witnesses remained to be produced, suggesting a likelihood of the case concluding in a reasonable time — Given the heinous and non-bailable nature of the offenses, no case for bail concession was made — Bail application was rejected. [Para. No. 9, 10, 11, 12, 13 & 14]

Allah Wasaya v. The State and others PLD 2022 SC 541, Sh. Liaquat Hussain and others v Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs Islamabad and others PLD 1999 SC 504 relied.

2012 YLR 1469 (Sindh) and 2013 PCr.LJ 162 (Sindh) distinguished.

Surat Khan Kehtran for applicant.

Naimatullah Achakzai for the complainant.

Wajahat Nasir Khan, State Counsel for the State.

Date of hearing: 27^th March, 2023.

ORDER

Sardar Ahmad Haleemi, J:—This order disposes of Criminal Bail Application No.20 of 2023 filed by the applicant (accused) Zubair Ahmed in case FIR No.21 of 2019 dated 20th November 2019 under sections 302, 324, Q&D, 365, 170, 392, 147, 148 and 149, P.P.C. lodged at Levies Station Sinjawi on the complaint of one Wali Muhammad with the allegation of murder of Haji Syedal Khan and Nasar-ud-Din, Naimatullah, Habibullah, and causing firearm injuries to Rashid, Muhammad Anwar, and Muhammad Zakariya.

2.           In pursuance of the instant case, the applicant was arrested, investigated and after completion of the investigation, the challan of the case was submitted before the learned Additional Sessions Judge-X, Quetta (hereinafter the “trial Court“), whereafter the trial commenced.

3.           The applicant/accused filed post-arrest bail application No.242 of 2022 before the trial Court, but the said application was rejected vide order dated 29th December 2022, whereafter the instant application has been filed.

4.           In the meanwhile, the applicant through C.M.A. No.109 of 2023 placed on record the complete order sheets of the trial Court, which were taken on record.

5.           At the very outset Mr. Surat Khan Kehtran, learned counsel for the applicant stated that he will not press the bail application on merit but rather argue the same on statutory grounds only: Further, contended that applicant was arrested on 10.02.2021, whereafter the trial commenced on 04th April 2021, but despite the lapse of one year, the trial was not concluded therefore section 497(1), Cr.P.C. is attracted in the instant matter; the delay caused in the trial is dúe to non-appearance prosecution witnesses. Learned counsel in support of his contention placed reliance on the cases of 2012 YLR 1469 (Sindh) and 2013 PCr.LJ 162 (Sindh).

6.           Conversely Mr. Naimatullah Achakazi, Advocate learned counsel for the complainant controverted the arguments of learned counsel for the applicant and submitted that the applicant is a hardened criminal and is brought to the court under full-proof security on every hearing; mostly the case was adjourned due to non-availability of police officials, as usually they were occupied in polio, law and order situations; the statements of private witnesses have been recorded, but the said witnesses were cross-examined after availing several opportunities by the learned counsel for co-accused; the delay so caused was due to the conduct of the accused counsels; that the earlier bail applications filed by the accused were rejected by the trial court and lastly prayed for the rejection of the instant application. Learned counsel for the complainant relied upon case laws reported in PLD 2022 Supreme Court 541 and PLD 2022 Supreme Court 112.

7.           Mr. Wajahat Khan Ghaznavi, learned State counsel supported the contentions of learned counsel for the complainant and further added that at present, case taken on the statutory ground by the applicant is not attracted due to the reason, that after the commencement of trial in April 2021, pandemic Covid-19 started and thereafter, the cases were not proceeded due to the precautionary measure of Covid-19. In addition, the instant case was transferred from Loralai to Quetta due to life threats to Prosecution witnesses and the lack of security arrangements for the applicant; that few hearings were adjourned due to the non-production of the applicant from jail because the police officials were engaged in polio and law and order duties, therefore, in such circumstances, security was not provided to the applicant as well as prosecution witnesses and last but not the least, the learned State counsel stated that the prosecution witnesses had not been cross-examined due to absence of counsel for co-accused, as such, the benefit of delay for few months in the trial cannot be extended to the applicant and the statutory grounds taken by the applicant does not apply in the instant case.

8.           I have heard the learned counsel for the applicant as well as learned counsel for the complainant assisted by learned State counsel at length and scanned the record with their able assistance.

9.           The allegations in the crime report No. 21 of 2019 depict that on 20th November 2019 at about 1:15 p.m., the applicant along with other co-accused persons disguised in army uniform arms with deadly weapons intercepted a fielder car and boarded down the persons sitting in the said car, and by means of firing, murdered Haji Syedal Khan and Nasar-ud-Din and injured Rashid, Muhammad Anwar, and Muhammad Zakriya, whereas, abducted Naimatullah and Habibullah, who were later on murdered by slaughtering them in the nearby mountains. According to the FIR, the statement of witnesses recorded under section 161, Cr. P.C and the statements of eye-witnesses reveal that the applicant has been specifically assigned the role of firing upon the deceased and injured person, further, the applicant has been charged with heinous and non-bailable offences.

10.         The 3rd and 4th proviso have been inserted by Act VIII of 2011 w.e.f. 18.4.2011 in subsection (1) of section 497, Cr.P.C., which reads as under:

“Provided further that the Court shall, except where it is of the opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused 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 with death, has been detained for such offence for a continuous period exceeding one year or in case of a woman exceeding six months and whose trial for such offence has not concluded; or

(b) Who, being accused of an offence punishable with death, has been detained for such offence for a continuous period exceeding two years and in case of a woman exceeding one year and whose trial for such offence has not concluded.

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 or imprisonment for life.”

11.         In the forgoing proviso of subsection (1) of section 497, Cr.P.C expressed hardened and desperate or dangerous criminal and on the basis of material available on the record when considering the bail on statutory grounds, it transpired that in the present case, the applicant along with other co-accused persons in a pre-planned manner managed to intercept the deceased and injured persons by introducing themselves as army personnel and thereafter, committed the murder of Naimatullah and Habibullah by slaughtering them. As such, the third proviso of subsection (1) of section 497, Cr.P.C attracts in the instant case, which has been elaborated by Hon’ble Supreme Court in the case of Allah Wasaya v. The State and others PLD 2022 SC 541, which reads as follows:

“The meaning and scope of the phrase “hardened, desperate or dangerous criminal” have also been explained in Shakeel Shah, wherein this Court held that the words “hardened, desperate or dangerous” point towards a person who is likely to seriously injure and hurt others without caring for the consequences of his violent act and can pose a serious threat to the society is set free on bail, and such tentative opinion as to the character of the accused is to be formed by the court upon careful examination of the facts and circumstances of the case. We are of the considered view that the court may also refer to any previous criminal record, if available, for forming such opinion but it matters little if the accused does not have a previous criminal record. The very gravity and severity of the act alleged to have been committed by the accused, even though for the first time, may be sufficient to attract the fourth proviso to section 497(1), Cr.P.C. in the peculiar facts and circumstances of a case and may lead the court to form opinion that the accused is a hardened, desperate or a dangerous criminal.

12.         In order to decide the case of the applicant on statutory grounds, it would be appropriate to make a cursory survey of the diaries of the trial Court, which reflects that initially in the year 2021, the matter was adjourned on many hearings due to pandemic Covid-19, which was a natural disaster affected the whole world and was beyond the human control, further, despite the presence of prosecution witnesses, the defense counsel sought many opportunities to cross-examine the witness. Further, the case of the applicant was transferred by the order of this Court from Loralai to Quetta due to threats to the prosecution witnesses and the lack of security arrangements for the applicant being a hardened criminal. Further, only 10-15 order sheets reflect that the case was adjourned due to the non-presence of the prosecution witnesses, therefore in the instant matter, the statutory ground does not attract. Reliance in this regard is placed on the case of Sh. Liaquat Hussain and others v Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs Islamabad and others PLD 1999 SC 504, wherein it has held as under:

“45. Before concluding the above discussion it will not be out of context to point out that the third proviso to section 497 the Criminal Procedure Code is also substantially contributing towards the delay in the disposal of criminal cases as it entitles an accused person accused of an offence not punishable with death to obtain bail on the expiry of one year from the date of his arrest, and in case of an offence punishable with death on the expiry of two years period from the date of his arrest. Some of the accused persons by their design ensure that the trials of their cases are delayed, so that they may come out of jails on the expiry of the above statutory period. In my humble view, the above provision has been misused and the same needs to be deleted. I may also observe that even before the incorporation of the above proviso, it was open to a Court to grant bail in a fit case on the ground of inordinate delay in the trial of a case, but no accused person was entitled to claim bail as a matter of right on the expiry of certain period.”

13.         Moreover, it revealed from the record that the private witnesses had recorded their statements, and only official witnesses were left to be produced, thus there is a likelihood that the case will be concluded in a reasonable time. The offences with which the applicant has been charged are heinous and are also non-bailable, therefore, under such circumstances, no case for the concession of bail is made out.

14.         At bail stage, deep scrutiny of material available on record is unwarranted, as the same would affect the merits of the case at the trial. However, a tentative assessment available on record prima facie connects the applicant with the commission of the alleged offence which falls within the ambit of the prohibitory clause of section 497, Cr.P.C.

The judgments relied upon by the learned counsel for the applicant are distinguishable from the facts and circumstances of the present case.

For the above reasons, the instant bail application is rejected, however, the trial Court is directed to conclude the matter expeditiously.

The observations made hereinabove are tentative in nature and same shall not influence the merits of the case at trial.

Bail declined