GHULAM RASOOL Versus STATE
This is a criminal bail application filed before the Sindh High Court by an accused person facing trial under section 302/324 of the Pakistan Penal Code 1860 in F.I.R. No. 85/98. The core legal question concerns whether the applicant is entitled to the concession of post-arrest bail on the ground of statutory delay under the third proviso to section 497(1) of the Code of Criminal Procedure 1898, given that he remained in continuous custody for over two years without a challan or charge-sheet being submitted, and the delay was not attributable to him. The High Court held that the right of an accused to be enlarged on bail under the third proviso to section 497(1) of the Code of Criminal Procedure 1898 is a mandatory statutory right that cannot be denied through the discretionary powers of the court. The court laid down the principle that where an accused person has suffered prolonged incarceration exceeding the statutory period without any fault or delay on their part due to the negligence of investigating authorities in submitting a timely charge-sheet, they are entitled to the grant of bail as a matter of right.
- Is the right to be released on bail under the third proviso to section 497(1) of the Code of Criminal Procedure 1898 mandatory or discretionary?
- Does an accused become entitled to statutory bail when the delay in the conclusion of the trial or submission of the challan is not attributable to him?
- Can an accused be denied statutory bail under section 497 of the Code of Criminal Procedure 1898 due to the negligence of the investigating officer in filing a timely charge-sheet?
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 497(1), Code of Criminal Procedure 1898
ORDER
1. Granted subject to all just exceptions.
2. The present applicant/accused is facing trial in an offence under section 302/ 324, P.P.C. in F.I.R. No.85/98 registered at Police Station TPX, Karachi.
1. The brief facts, as narrated in the F.I.R. are as under:‑‑‑
2. "I alongwith my wife and children reside on the address mentioned in Column No.2 for the last 8 years. I run a shop with the name and style of Bukhari General Stores at Sandam Chowk Jafferwali Gali for the last 3 years. Today on 31‑3‑1998, I alongwith my daughter namely Jannat Begum aged 10 years was present at my shop. At about 6‑15 hours, Ghulam Rasool son of Ghulam Hussain Guchal, who is known to me, came at my shop and told me to go with him. I enquired from him where, he replied "on his place" (Adda). I refused to go with him, thereupon all of a sudden, he took out pistol from right hand and threatened me. Due to fear, I came out and raised alarm. Thereupon, Ghulam Rasool fired on me and I jumped on him and tried to catch hold of him in order to save my life. Meanwhile, many people gathered there, Ghulam Rasool started continuous firing as a result thereof one Nazir Ahmed son of Amir Zaman received injury on his head and fell down. He was taken to hospital where he died. This incident was witnessed by (1) Nooruddin son of Muhammad Sabir Ali, (2) Habibur Rahman, (3) my daughter Jannat Begum and other Mohallah people. I complain against Ghulam Rasool son of Ghulam Hussan Guchal who had fired on me due to old grudge and killed Nazir Ahmed with fire‑arm shot. I have come for report. Action be taken. Statement heard and found correct.
3. (Sd.)
4. In English"
5. Mr. Mahmood A. Qureshi, learned counsel for the applicant/accused has urged that the alleged offence was recorded on 31‑3‑1998 while the present applicant/accused was remanded to judicial custody on 14‑5‑1998 in Crime No. 45/98 under section 302/34, P.P.C., registered at the same Police Station (PS TPX). It is further stated that since 30‑10‑2000 S.H.O. of Police Station TPX had taken over the custody of applicant from Central Prison, Karachi for the purpose of investigation as permission of the learned Sessions Judge, Karachi‑West was obtained on 6‑11‑2000 and the applicant was remanded back to the judicial custody. It is further urged by the learned counsel for the applicant that despite of passage of 2‑1/2 years police has not filed the challan and applicant/accused remained in jail without lawful authority. It further contended that the Prosecuting Inspector moved an application before the learned Sessions Judge, Karachi‑West for granting the police custody to the present applicant/ accused in this crime whereas the Investigation Officer was directed to make the investigation with the accused in jail and prayer of the prosecution was rejected on 20‑5‑1998 by the learned Sessions Judge, Karachi‑West. The bail prayer was filed in the trial Court on the ground of statutory delay and it is further contended that the applicant's case falls within the ambit of third proviso to section 497, Cr.P.C. and he is entitled for concession of bail. It is further urged by the learned counsel for the applicant that in this crime the prosecution has filed the charge‑sheet on 20‑3‑2001 whereas the incident took place on 31‑3‑1998 and passage of long time the charge‑sheet has been filed and there is gross negligent of the prosecution to withhold the charge for indefinite period. In support of his contentions, learned counsel placed reliance on the cases, reported in PLD 1995 SC 49 and 1998 NLR 322.
6. Mr. Habib‑ur‑Rasheed, counsel for the State, has conceded the factual position that, the applicant/accused was arrested on 14‑5‑1998 in Crime No.45/98 of the same police station, but deliberately he was not shown arrested in this crime. It is further conceded by the State Counsel that a prayer was made by the Prosecuting Inspector in the Court of learned Sessions Judge, Karachi- West for handing over the custody of the applicant/accused for the purpose of investigation but the said prayer was rejected on 30‑5‑1998. The prosecution was aware of the fact that the applicant/accused was already in the custody in Crime No.45/98 of the same police station and they deliberately did not prepare the formal memo. of arrest in the present case. In view of such position, die learned State Counsel has conceded for grant of bail to the applicant/accused on statutory ground.
7. I have heard the arguments of both the learned counsel and have also gone through the material available on record.
8. Admittedly, the applicant/accused was arrested on 14‑5‑1998 and he is in continuous custody for more than two years and the charge‑sheet was filed on 20‑3‑2001 after lapse of more than two years. The learned Sessions Judge while rejecting the bail application did not discuss or mention the grounds in respect of the statutory delay.
9. The Investigating Officer and the S.H.O. remained negligent in performance of their duties and due to this act the applicant/accused remained without trial in the competent Court of law, as there is no delay on the part of the applicant/accused for the conclusion of the trial, hence the applicant/accused under third proviso to section 497(1), Cr.P.C. is entitled for grant of bail as a right. The provisions of law are mandatory rather discretionary as regards statutory delay, as has been held in case of Zahid Hussain Shah v. The State, reported in PLD 1995‑SC 52‑53.
10. In the above case, it has been held by the Hon'ble Supreme Court that the right of an accused to be enlarged on bail under the third proviso to section 497(1), Cr.P.C, is a statutory right which cannot be denied under discretionary powers of the Court to grant bail. There is another unreported case of this Court in Criminal Bail Application No.123/2001 (Lal Dino alias Lala v. The State), wherein it has been laid down that from the date of arrest the case has not proceeded with no fault of the applicant and the concession of bail was extended to the accused while relying upon the cases reported in PLD 1995 SC 52, 1993 SCMR 525 and 1999 PCr. LJ 501.
11. The report from the J ail Superintendent, Central Prison, Karachi was also called in respect of the conduct of the applicant/accused and it has been reported by the Superintendent that the conduct of the applicant/accused is satisfactory.
12. In view of the case‑law cited by the learned counsel for the applicant/accused and the other case‑law referred to above, I am of the view that the applicant/accused is entitled for grant of bail as he was in custody without his fault and the concerned Investigating Officer and the S.H.O. of the relevant police station were proved themselves to be the negligent in performance of their duties for non‑submission of the charge‑sheet within stipulated period.
13. A copy of this order be communicated to the Inspector‑General of Police, Sindh for initiating action against the above delinquent police officials for non -submission of the charge‑sheet within the time provided under the law, under intimation to the M.I.T. of this Court.
14. Resultantly, the bail is granted to the applicant/accused in the sum of Rs.2,00,000 and P.R. bond in the like amount to the satisfaction of the trial Court.
15. N.H.Q./G‑52/K Bail granted.