KHALID Versus STATE

The petitioner has applied for grant of bail in a case registered against him and others vide F.I.R. No.65, dated 13-3-1991 for an offence under section 302/34, P.P.C. at Police Station Banni, District Rawalpindi.

2. The petitioner's earlier bail petition (Criminal Miscellaneous No.533/B of 1991) was dismissed on merits vide order dated 25-11-1991. He has now again applied for grant of bail on the ground of delay in the trial.

3. The petitioner's learned counsel submits that the petitioner is confined in the jail for the last about 2-1/2 years and his trial has not even commenced. He further submits that notwithstanding the deletion of 3rd and 4th provisos to section 497 of the Cr.P.C. the petitioner can still be granted bail on the ground of delay in trial. He places reliance on the following judgment:--

(i)Riasat Ali v. Ghulam Muhammad and another P L D 1968 SC 353,

(ii) Riasat Ali and others v. The State P L D 1977 SC 480,

(iii) Sher Zaman v. Muhammad Azad and another 1978 S C M R 248,

(iv) Barkhurdar v. Liaqat Ali and 2 others P L D 1977 SC 434,

(v) Manzoor Khan v. Kamir and 4 others 1972 S C M R 207,

(vi) Manzoor Ahmad and 4 others v. The State P L D 1972 SC 81 and

(vii) Muhammad Sadiq v. Muhammad Shari and another 1973 S C M R 212.

On the other hand the learned counsel for the State opposed grant of bail to the petitioner on the ground that the case has since been entrusted to an Additional Sessions Judge at Rawalpindi and the accused has been summoned to appear before him on 17-10-1993. However, he states in a candid and fair manner that bail can be granted by this Court on the ground of inordinate delay keeping in view the facts and circumstances of each case.

4. Inordinate delay in conclusion of trial was always considered to be a good ground for grant of bail by Courts of law. In Riasat Ali's case it was held:--

"Inordinate delay in the prosecution of a case, if not explained by the prosecution, amounting to an abuse of the process of law, can be considered as a ground for bailing out an accused person even in a murder case depending on the nature of the delay and the circumstances that have caused it. The prosecution is expected to proceed with its case with all despatch eliminating every avoidable delay in order to ring it to a close and thus to determine the fate of an accused which hangs in the balance as long as the proceedings do not terminate one way or the other. The prosecution cannot be permitted to enlist the will of Court on its side directly or indirectly in prolonging the worries and harassment of an accused person which are inevitably caused by his protracted detention without trial. Leisurely steps taken in filing the challan, tardy and halting production of evidence or seeking of unnecessary adjournments, except those necessitated by force of circumstances must be strongly deprecated. But delay in the prosecution of a case or the procrastination of the proceeding in a trial furnishing as a ground for bail have to be weighed and judged in each case on its own merits."

In Manzoor Khan's case a similar view was expressed in the following words:--

"It is not the intention of the law to keep under-trial prisoners, including those charged with capital offences without trial for inordinately long periods without any satisfactory explanation or reason to justify that action."

Again in Muhammad Sadiq's case bail granted after detention of the accused in jail for one year was not cancelled by the Honourable Supreme Court. In the case of Riasat Ali and others v. The State P L D 1977 SC 480 bail was granted by the Honourable Supreme Court on considering the delay of one year and 9 months which had already taken place as well as the future delay in the commencement of the trial. In Sher Zaman's case the High Court had granted bail on the ground of past and future delay. The accused had remained in jail for 28 months and further delay of about 1 year and 3 months was going to be caused in trial, therefore, the Honourable Supreme Court was pleased to maintain the bail order and dismissed the leave petition for cancellation of bail.

5. Delay in conclusion of trial was recognised as a valid ground for grant of bail through the Code of Criminal Procedure (Second Amendment) Ordinance, 1979 (Ordinance LXXI of 1979), whereby third proviso was added to section 497 which reads as under,

"Provided further that the Court 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, or

The provisions of the 3rd proviso were made inapplicable to previously convicted offender or a hardened, desperate or dangerous criminal by the 4th proviso added through the Code of Criminal Procedure (Second Amendment), Ordinance, 1983 (XXXII of 1983). The Third and Fourth provisos were omitted through Ordinance XV of 1992, Code of Criminal Procedure (Second Amendment) Ordinance, 1992. On the expiry of the said Ordinance, the Code of Criminal Procedure (Second Amendment) Ordinance, (No.III) of 1993 was enforced. Recently the Code of Criminal Procedure (Third. Amendment) Ordinance (No.X) of 1993 has been enforced whereby 3rd and 4th provisos to section 497 of the Code of Criminal Procedure have been omitted. The effect of the omission of the two provisos is that the pre-amendment position of the law stands restored. Now the Court enjoys discretionary power to grant bail on the ground of delay in conclusion of the trial or refuse it keeping in view the facts and circumstances of the case and precedents of the superior Courts. The deletion of the 3rd proviso does not mean that the law-makers have consciously abolished delay as a ground for bail and that a Court of law is not competent to grant bail on the ground of delay in conclusion of trial. If such a view is adopted, it would provide legal cover to delays and enable the prosecution to keep under-trial prisoners behind the bars indefinitely, may be for five years or more. This can never be the intention of the law. The law-makers are deemed to be aware of the salutary principle of administration of justice that "Justice delay is justice denied" and cannot be burdened with the intention of protecting delays in trials and thereby prolonging the agony of the under-trial prisoners. It is pertinent to mention that the provisions of section 426(1-A), Cr.P.C. relating to suspension of sentence and grant of bail after conviction on the ground of delay in the hearing of appeals are intact. If the law does not countenance prejudice to the convicts, who are found to be guilty by Court, it cannot do otherwise in cases of under-trial prisoners who are presumed to be innocent till proved guilty. In my view, the real effect of omission of the provisos is two-fold; firstly even on fulfilment of conditions specified therein, grant of bail on the ground of delay is not mandatory but has become discretionary with the Court, secondly the Court is no longer supposed to wait for 2 years in cases involving sentence of death and for one year in other cases before granting bail on the ground of delay in the conclusion of the trial. Now the Court enjoys discretion to grant bail on the ground of delay in trial even before the expiry of the period mentioned in the 3rd proviso.

6. In the present case, the petitioner is behind the bars for the last 2-1/2 years and his case was entrusted to an Additional Sessions Judge for trial, only recently. The petitioner as well as the other co-accused have to appear before E the trial Court for the first time on 17-10-1993. The conclusion of trial is bound to take considerable time thereby causing serious prejudice to the petitioner who did not cause any injury to the deceased. He was alleged to have caused a fire-arm injury on the leg of Zafar Ali Shah P.W. which was declared to be simple in nature. Moreover, on behalf of the State no apprehension has been expressed that the petitioner would either abscond, commit any other offence or tamper with the prosecution evidence if released on bail. Therefore, I accept this application and allow bail to the petitioner subject to his furnishing bail bond in the sum of Rs50,000 with two sureties each in the like amount to the satisfaction of A.C./Duty Magistrate, Rawalpindi. After acceptance of the bail bonds the A.C./Duty Magistrate shall send copies of the same to the trial Court as well as this Court for record.

N.H.Q./K-95/L Bail allowed.