KAMRAN MASIH vs THE STATE
This bail application was filed by an applicant facing trial for offences under Sections 302, 201, 109, 120-B, 297, and 404/34 of the Pakistan Penal Code 1860. The applicant had been in continuous detention for over three years and five months since his arrest on October 8, 2000, with little progress made in the trial. Despite a previous High Court direction ordering the trial court to examine the complainant within a specified timeframe, the complainant failed to appear and remain available for examination. The core legal question was whether the applicant was entitled to post-arrest bail on the ground of hardship due to prolonged detention where the delay was not attributable to him. The High Court held that since the applicant did not contribute to the delay and had suffered prolonged detention of over three years and five months, he was entitled to bail on the ground of hardship. The Court allowed the application and ordered the applicant's release on bail subject to furnishing surety.
- Whether an accused person is entitled to post-arrest bail on the ground of hardship due to prolonged detention where the delay in the trial is not attributable to him?
- Can a court grant bail to an accused facing a murder charge if the prosecution fails to produce key witnesses despite specific judicial directions to expedite the trial?
- Section 302, Pakistan Penal Code 1860
- Section 201, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 120-B, Pakistan Penal Code 1860
- Section 297, Pakistan Penal Code 1860
- Section 404, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ORDER
1. ' I have heard Mr. Jai Jai Veshnu, Advocate for the applicant, Mr. Ali Nawaz Ghanghro, Advocate for the complainant and Mr. Muhammad Ismail Bhutto, learned State counsel.
2. Applicant is facing trial for an offence punishable under sections 302, 201, 109, 120-B, 297 and 404/34, P.P.C. He was arrested on 8-10-2000 and the charge was framed on 24-9-2001 but the trial has made no substantial progress.
3. ' Initially, looking to the slow pace of the trial this Court passed an order on 11-12-2001 in Cr. Bail Application No.360 of 2001 directing the trial Court to examine two witnesses namely the Magistrate who recorded the confession and the complainant within a period of one month. Thereafter, the Judicial Magistrate was examined, but the complainant could not be examined. No doubt two more witnesses have been examined, but the evidence of complainant is still not forthcoming. The instant bail application was filed on 16th April, last year and the proceedings continued expecting that some progress would be made. Lastly, on 11-2-2004, an observation was recorded by this Court that the learned counsel on behalf of complainant would facilitate the proceedings to be taken by the trial Court so that the complainant could conveniently be examined on next date of hearing in the trial Court, but the copy of last case diary filed by Advocate for applicant shows that the complainant remained absent on 28-2-2004 and made an application for excusing his absence. In this way, the direction issued on 11-12-2001 could not be implemented completely by examining the complainant also.
4. Admittedly, the applicant is in jail for a period of more than three years and five months. Learned counsel for the applicant has relied on the cases reported as Behram v. State 2003 PCr.LJ 73; Abdul Hameed v. State 2003 M LD 19; Shabir v. State 2003 PCr.LJ 1521 and Ali Murad v. State 2003 YLR 3166 and submitted that as a case of hardship, the applicant be granted bail as there is no fault on his part.
5. Mr. Ali Nawaz Ghanghro, learned counsel for the complainant submits that in fact there are six defence counsel in the case and for one or the other valid reason the trial is being adjourned. This may be correct but at least it is admitted that the applicant has not contributed towards delay in conclusion of the trial. Likewise it goes without saying that in the afore stated circumstances, the direction of this Court could not be implemented during the period of more than two years. This is a case of prolonged detention and the period of detention being more than three years and five months, the applicant is entitled to grant of bail on the ground of hardship. The authorities cited above also support the bail plea.
6. In consequence of the above, the application is allowed. The applicant be released on bail on furnishing surety in the sum of Rs.3,00,000 and P.R. Bond in the like amount to the satisfaction of trial Court.