QAMAR-UZ-ZAMAN Versus STATE
ORDER
The present petition contends for post‑arrest bail of the petitioners on the statutory ground in the case registered vide F.I.R. No. 209/94 dated 20‑5‑1994 under section 302/148/149, P.P.C. at Police Station Thikriwala, District Faisalabad.
2. It was contended on behalf of the petitioners that more than two years, in fact 1038 days till date, have elapsed without the trial of the petitioners and their co‑accused having been concluded, and that the delay so occasioned i.e. to the extent of more than two years, cannot be attributed to the petitioners. Further argued that, out of the delay occasioned the period that can be attributed to the petitioners by way of allowing time to engage a counsel or because of non‑availability of their counsel comes to only 63 days and that even if the said number of days are deducted from the total period of 1038 days that has lapsed till date without the trial in question being concluded, even then the petitioners are entitled to bail as of right under‑the statutory provisions of law i.e. (b) of the 3rd proviso to subsection (1) of section 497, Cr.P.C.
3. The learned counsel for the State and the complainant opposed the present petition and argued that the delay in the conclusion of the trial had occurred because of the conduct of the petitioners. To examine the case on the statutory ground, the learned counsel for the parties brought to the notice of the Court specific dates of adjournment to determine the question whether or not the petitioners are entitled to bail on the statutory ground of delay so far occasioned in the conclusion of the trial under the provisions of law stated above.
4. To support their argument that the delay in the conclusion of the trial had occurred because of the conduct of the petitioners, the learned counsel for the State and the complainant emphasised that the period lapsed between the dates of hearing mentioned hereunder can be attributed to the petitioners, and the said contentions were dealt with as follows:‑
(a) Firstly, .it was pointed out that the trial in question remained stayed from 27‑11‑1995 to 9‑6‑1996 pursuant to the High Court's order dated 14‑11‑1995 passed in Criminal Miscellaneous No.428‑Q of 1995 preferred by the petitioners against the order passed by the learned Trial Court on an application filed by the complainant. The said learned counsel further pointed out that the said quashment petition was withdrawn by the petitioners on 2‑6‑1996, but conceded that nothing adverse had been stated in the said order of withdrawal against the petitioners. Therefore, it is hereby held that the delay thus occasioned by the restraining order dated 14‑11‑1995 passed by the High Court in a matter initiated by the complainant, cannot be attributed to the petitioners, as the invoking of a Court's jurisdiction and proceedings pursuant thereto, ipso facto, cannot be made the basis for impugning the conduct of the party concerned, unless it was expressly and specifically so held by that Court.
(b) Secondly, period of 11 days from 23‑11‑1996 to 4‑12‑1996 was wrongly pressed to be attributed to the petitioners on the ground that they had applied for copies of the statements, as it was conceded on behalf of the State that the learned trial Court had allowed the said request and directed for the copies of the statements in question to be provided to the accused/petitioners while adjourning the case.
(c) Similarly, a period of 29 days from 10‑3‑1997 to 9‑4‑1997, cannot be attributed to the petitioners, as the learned trial Court itself had adjourned the proceedings; .as was, the case between 24‑4‑1997 to 7‑5‑1997 because the Presiding Officer of the learned trial Court was on ? leave.
(d) Only twice, as pointed out by the learned counsel for the State and the complainant and duly conceded by the learned counsel for the petitioners, i.e. for 38 days between 11‑7‑1996 to 19‑8‑1996 and for 25 days between 15‑2‑1996 to 10‑3‑1997, the petitioners were allowed adjournments on the ground that, in the first instance they wanted to engage a counsel and on the second occasion their learned counsel was absent. But the total period for the said two adjournments comes to only 63 days.
Therefore, even after deducting the said period out of 1038 days elapsed since the detention of the petitioners, the delay of 975 (lays can be attributed to the prosecution for its failure to conclude the trial of the petitioners/accused, which duly makes out a case for their bail on the statutory ground, as contended herein.
5. At this stage, the learned counsel for the State and the complainant pointed out that the testimony of five formal P.Ws. stood recorded, and that, therefore, at this juncture, the petitioners may not be admitted to bail.
However, the dictum laid down by the Honourbale Supreme Court in the case reported as Muhammad Ismail v. Muhammad Rafique and another (PLD 1989 SC 585) can be invoked to rebut the said argument. In the case referred to, it was held that when an accused person becomes entitled as a right to bail, it cannot be withheld on the ground of practice prevailing to the effect that when a murder case is fixed for hearing, ordinarily, the bails of the accused are not decided on merits and the matters are left to the discretion of the learned Trial Court; because the said practice is relatable to the exercise of discretion while the grant of bail is relatable to the exercise and grant of right. Further support was sought in the instant case by placing reliance upon Zahid Hussain Shah v. State (PLD 1995 SC 49), as the said case directly deals with the bail on the statutory ground. Therein it was held as follows:‑---
"The right of an accused to be enlarged on bail under the 3rd proviso to section 497(1), Cr.P.C. is a statutory right which cannot be denied under the discretionary power of the Court to grant bail. The right of an accused to get bail under the 3rd proviso of section 497(1), Cr.P.C. is not left to the discretion of the Court but is controlled by that provision. The bail under the 3rd proviso to section 497(1), CC.P.C, can be refused to an accused by the Court only on the ground that the delay in the conclusion of the trial had occasioned on account of any act or omission of the accused or any other person acting on his behalf. The bail under the 3rd proviso to section 497(1), Cr.P.C. can also be refused by the Court if the case of the accused fell under the 4th proviso to section 497(1), Cr.P.C. In all other cases the Court must grant bail. "
It was confirmed on behalf of the State that the petitioners are neither previous convicts, nor are they, in the opinion of any Court, hardened, desperados or dangerous criminals.
6. Therefore, pursuant to the above discussion it is hereby held that the petitioners are entitled to bail on the statutory ground under the provisions of (b) to 3rd proviso to subsection (1) of section 497, Cr.P.C.
7. Consequently, the petitioners are hereby allowed bail in the sum of Rs.50,000 each with two sureties each in the like amount to the satisfaction of the learned trial Court.
N.H.Q./Q‑4/L ????????????????????????????????????????????????????????????????????????????????????????????????? Bail granted.