AHMAD HASSAN SHAH Versus THE STATE

ORDER

This is an application for grant of bail to Ahmad Hassan Shah petitioner in a case under section 302/307/148/149, P.P.C. registered at P.S. Syedwala, District Sheikhupura, vide FIR No. 107/81, dated 12‑9‑1981.

2. The prosecution case is that the petitioner and his co‑accused all armed with guns criminally trespassed into the house of the complainant on the night between 11/12‑9‑1987. The petitioner, Akhtar Hussain Shah and Mazhar Hussain fired shots from their guns hitting Akbar Ali Shah resulting in his death.

3. Learned counsel for the petitioner has not touched the merits of the case. He submitted that although the petitioner was arrested on 12‑12‑1982 and more than 5 years have passed yet the trial has not been concluded without any fault on his part. Learned counsel for the State has opposed this application on the ground that the proceedings in the case have already commenced and the case is now fixed for hearing on 4‑1‑1988.

4. I have considered the submissions made by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the petitioner. I find that it is a case of inordinate delay in the conclusion of trial. The petitioner was arrested on 12‑12‑1982. The statutory period for the conclusion of trial concluded on 11‑12‑1984 and although 3 years have passed since the expiry of the statutory period yet the trial has not been concluded. The delay in the trial has not occasioned by an act or omission of the petitioner or any other person acting on his behalf. In this view of the matter, 1 feel that the concession of bail should not be withheld merely because the trial has already commenced and the case is now fixed on 4‑1‑1988 for the recording statements of the remaining prosecution witnesses. Even otherwise, I am of the view that there are only two restrictions on the grant of bail on the ground of statutory delay. Firstly, that the delay is occasioned by an act or omission of the accused and secondly, the petitioner is a hardened, desperate or dangerous criminal. These restrictions do not exist in the case in hand. The relevant law may be reproduced I advantageously:

Section 497_ Cr.P.C . (1). ..............

Proviso (1)

"Provided further that the Court shall, except where it is of 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 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 whose trial for such offence has not concluded:

Proviso (2)

Provided further that the provisions of the third proviso to this subsection shall not apply to a previously convicted offender or to a person, who in the opinion of the Court, is a hardened, desperate or dangerous criminal."

The words "whose trial for such offences has not been concluded" are of great significance. Had the intention of the Legislature been to refuse bail to the accused whose trial for such offences has commenced or are likely to be concluded in a near future then the Legislature would not have used the word "concluded" That being the position 1 feel that considerations other than the restrictions contained in the relevant proviso, being foreign to law are quite irrelevant and bail should not be refused to a person who has earned right of bail by remaining in jail continuously for such a long time, simply because the trial has commenced or the trial is likely to be concluded m a near future.

For what has been said above, the petitioner is allowed bail in the sum of Rs. 30,000 with one surety in the like amount to the satisfaction of trial Court.

SA./A‑229/L

Bail granted.