2019 Y L R 230
[Balochistan]
Before Abdullah Baloch and Nazeer Ahmed Langove, JJ
Syed AMINULLAH ---Applicant
Versus
The STATE--- Respondent
Criminal Bail Application No.21 of 2018, decided on 26th March, 2018.
Criminal Procedure Code (V of 1898) ---
----S.497--- Penal Code (XLV of 1860), Ss. 420, 468, 471 & 109---Drugs Act (XXXI of
1976), Ss.23 & 27--- Cheating and dishonestly inducing delivery of property, forgery,
using as genuine a forged document, selling and stocking drugs without having any
licence ---Bail, grant of ---Statutory ground---Accused was behind the bars for the last 18
months and prosecution had only examined six witnesses while the remaining witnesses were yet to be examined ---Seat of Chairman Drugs Court, was vacant and no notification
for appointment of the Presiding Officer had been issued ---Accused, could not be kept
behind the bars for an indefinite period while co- accused, had been granted bail ---Rule of
consistency demanded equal treatment ---Grave injustice would be caused to the accused
if kept in jail in circumstances ---Accused was ordered to be released on bail.
Riasat Ali v. Ghulam Muhammad and The State PLD 1968 SC 353; Anwar
Saifullah Khan v. The State 2001 SCMR 1040 and Himesh Khan v. The NAB 2015 SCMR 1092 ref.
Ghulam Mus tafa Buzdar for Applicant.
Syed Ikhlaq Shah, Assistant Attorney General for Respondent.
Date of hearing: 20th March, 2018.
ORDER
ABDULLAH BALOCH, J. ---This order disposes of Criminal Bail Application
No.21 of 2018 whereby the applicant Syed Aminullah so n of Azizullah is seeking post -
arrest bail in case FIR No. 81 of 2016, Police Station FIA, Quetta, under Sections 23, 27 of Drugs Act 1976 read with sections 420, 468, 471, 109, P.P.C.
2. Facts of the case are that are that on 19th October 2016, the complainant Amir
Bakhsh, Drug Inspector Quetta Balochsitan on the basis of complaint of one Muhammad Qaisar, Manager Operation of Messrs KAD & Company pertaining to selling of drugs without having any license, selling and stocking of branded lifesaving drugs wit hout
having selling license, selling and stocking of un- registered drugs, selling and stocking of
unwarranted drugs, inspection was carried out by the relevant authorities, resulted in
recovery of un- registered and expired drugs. In presence of the nominat ed persons
(applicant and co --accused) the recovered articles were seized and samples were taken as
required, and sent to the Drugs Testing Laboratory, (DTL) Quetta.
3. After registration of FIR, the accused/applicant along with co -accused Shanullah
and Sa naullah were investigated and on completion thereof they were remanded to
judicial custody and challan of the case was submitted in the trial Court i.e. learned Drugs
Court of Balochsitan, Quetta. Earlier, the accused filed application for grant of bail be fore
the learned trial Court and before this Court (Crl. Bail Application No.142/2016), which was rejected to the extent of applicant, while the accused Shanullah and Sanaullah were granted bail. The applicant again approached the trial Court for grant of bail, but again the concession of bail was declined to him, vide order dated 5th May 2017. Whereafter, once again the accused -applicant approached this Court for grant of bail by filing the
Criminal Bail Application No.58 of 2017, but the same was rejected, vide order dated
10th July 2017. However, the trial Court was directed to expedite the trial and to dispose
of the case within the shortest possible time. The accused- applicant again approached the
trial Court for grant of bail, but the same was declined to him as is evident from the order
dated 15th December Hence, the accused -applicant has filed this application.
4. At the very outset, the learned counsel for accused -applicant contended that he is
only pressing this application for grant of bail mainly on statutory grounds as the
accused -applicant is behind the bars from the date of his arrest and lapse of about 18 -
months, the prosecution has failed to conclude the trial expeditiously as directed by this Court vide order dated 10th July 2017; that the or der sheets so maintained are suggesting
that the delay so occasioned in concluding the trial is on two counts, i.e. firstly, due to
failure of production of prosecution witnesses and secondly due to falling vacant the post of learned Presiding Officer/Chai rman Drugs Court; that so far only six witnesses have
been examined and the prosecution has to produce number of witnesses; that the applicant cannot be kept behind the bars for indefinite period; that the co- accused Shanullah and
Sanaullah have been grant ed bail by this Court, thus on the rule of consistency the
accused -applicant is entitled for grant of bail.
5. Learned Assistant Attorney General strongly opposed the arguments so advanced
by the learned counsel for accused -applicant and contended the delay so occasioned in
concluding the trial is due to non -appearance of the counsel for the applicant and the
remaining co -accused, thus he is not entitled for grant of bail on statutory grounds; that
the case of applicant is not at par to the case of co -accused Sanaullah and Shanullah; that
sufficient incriminatory evidence is available on record connecting the accused- applicant
with the commission of crime, thus he is not entitled for grant of bail.
6. Heard the learned counsel for parties and perused the record with their valuable
assistant. So far as the merits of the case are concerned, the accused -applicant has been
declared dis -entitle for grant of bail by this Court twice, thus there is no need to reiterate
the merits of the case.
7. So far as the gr ant of bail on statutory ground due to delay in conclusion of the
trial is concerned, suffice to state here that the FIR was lodged on l9th October 2016 and on the said date the accused- applicant was arrested by the FIA Authorities. Admittedly,
the accused -applicant is behind the bars from the date of his arrest and presently 18-
months have been passed, but the prosecution so far has only examined six witnesses,
while the remaining witnesses are yet to be examined, but the fact remains is that
presently the portfolio of Chairman Drugs Court is falling vacant and the Government has
not so far promulgated notification for appointment of the Presiding Officer of the trial Court. When confronted with the learned Assistant Attorney General, he also made his ignor ance about the specific timing for appointment/posting of Chairman Drugs Court or
the period, with which all the witnesses will be examined and the case may be concluded. The accused -applicant cannot be kept behind the bars for an indefinite period, when
otherwise the co -accused persons namely, Shanullah and Sanaullah have been granted
bail, thus the rule of consistency demands equal treatment.
8. Since, despite specific directions of this Court, the learned trial Court has failed to
conclude the trial expe ditiously and more over due to non- posting/appointment of
Chairman Drugs Court, there is no specific time was shown by the prosecution to
conclude the trial. In the such circumstances neither the accused -applicant can be kept
behind the bars for indefinite period nor the prosecution can be permitted to delay the
conclusion of trial at its own whims and choice. Not to say, about the prisoner accused, but also the accused on bail, have to suffer the anguish of trial on each and every day of
hearing and such practice cannot be permitted for an indefinite period. The trial so commenced ought to have been concluded within the reasonable time. It is the duty of the
Court to not only ensure the conduct of fair trial, but also to ensure the expeditious and
early dis posal of the case to save an accused from the anguish of trial. However, the
picture in the case in hand is quite different, because not only the trial of the case has
been delayed and the same is expanded on eighteen months, but the portfolio of learned
Chairman Drugs Court is falling vacant and even the learned Counsel representing the
State has also shown his ignorance about the exact time for the posting/appointment of
Chairman Drugs Court as well as the period for completions of trial, thus it would be
grave injustice with the accused -applicant to further keep him in jail at the mercy and
whims of the prosecution to conclude the trial. The Hon'ble Supreme Court of Pakistan in
the case of Riasat Ali v. Ghulam Muhammad and The State, PLD 1968 SC 353, has held
that, "Delay in prosecution of accused amounts to abuse of process of law and is a valid
ground for bailing out accused." In the case of Anwar Saifullah Khan v. The State, 2001
SCMR 1040, the Hon'ble Apex Court has held that, "bail cannot be withheld as a
punishment on the ground that the offences, the accused is charged for, are not bailable or grant of bail there was falling within the prohibition." Similar view has been taken in the
case of Himesh Khan v. the NAB, 2015 SCMR 1092, wherein it has spec ifically held that,
"An accused person cannot be left at the mercy of the prosecution to rotten in jail for an
indefinite period. The inordinate delay in the conclusion of trial of detained prisoners
cannot be lightly ignored provided it was not caused due to any act or omission of
accused."
For the foregoing reasons, the application is accepted. The accused- applicant Syed
Aminullah son of Syed Azizullah, is ordered to be released on bail, subject to furnishing
surety in the sum of Rs.200,000/ - with P.R. b onds of the like amount to the satisfaction of
trial Court or Additional Registrar of this Court.
The observations, made hereinabove, are purely tentative in nature and the learned
trial Court shall not get influenced by it in any manner.
HBT/39/Bal. Bail granted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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