MUHAMMAD HUSSAIN Versus THE STATE

ORDER

Muhammad Hussain, petitioner was arrested on 3‑9‑1991 and is in jail eversince, in pursuance of a case registered against him alongwith some others vide F.I.R. No.270/91, dated 24‑8‑1991 at Police Station Kunjah, District Gujrat, alleging offences under section 302/34/109, P.P.C.

2. Learned counsel appearing on behalf of the State informs me that the final challan against the accused persons was submitted on 14‑5‑1993; and that the evidence is being recorded by the trial Court.

Admittedly, Muhammad Hussain petitioner has been languishing in jail for more than three years without trial.

3. Every person accused of an offence is entitled to a fair trial. The concept of a fair trial necessarily includes a trial without unnecessary or inordinate delay. Citizens who are accused of an offence, no matter how heinous, cannot be kept in jail indefinitely without a trial.

Article 9 of the Constitution of the Islamic Republic of Pakistan provides that no person shall be deprived of liberty save in accordance with law.

4. The law relating to the grant of bail to accused persons, who have not yet been convicted, is laid down in Chapter XXXIX of the Code of Criminal Procedure wherein section 497, Cr.P.C. provides 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, 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.

5. It is now settled law that until and unless an accused person has been found guilty and has been convicted, he must be presumed to be innocent. It is equally settled law that bail cannot be withheld as a 8 punishment for the simple reason that in case an under‑trial prisoner is ultimately found innocent and acquitted, there is no compensation whatsoever that the State or society offer to such a person for the period that he has been unnecessarily in jail.

6. Learned counsel appearing on behalf of the State argued that the inordinate, delay in the commencement or conclusion of the trial of the petitioner was occasioned by some other accused persons who had absconded, and, therefore, the learned counsel submits that the petitioner is not entitled to the benefit of the third proviso to section 497, Cr.P.C,

7. I am afraid I cannot accept the contention of the learned counsel for the State for the simple reason that accepting such a contention would amount to saying that one person will be punished for the act of commission or omission of another. The petitioner has been in jail since the last three years and it was obviously beyond his control to go and arrest the other accused C persons. Be that as it may, he cannot certainly be made to suffer for the Investigating Agencies in not having performed their duty by arresting the other accused persons.

8. Resultantly, the petitioner is granted bail provided he furnishes bail bond in the sum of Rs.50,000 with two sureties each in the like amount to the satisfaction of A.C./Duty Magistrate, Gujrat.

N.H.Q./M‑1905/L ?????????????????? ?????????????????? ????????????????????????????????????????????????????? Bail granted.