JALAL Versus THE STATE N.K. Jatoi , Salman Ansari

ORDER

Mr. Salman states that he has not been able to get the police papers. I find that the matter is pending in this Court since 6-3-1988 and the office of A.-G. had enough time to obtain the police papers.

The only ground on which the bail is sought is that the applicants have remained in jail for more than 2 years, but the case has not been completed because of no fault on their part. Their earlier bail application bearing No.1055 of 1987 was rejected by this Court on 6-121987 on the ground that the applicants are dangerous, hardened and desperate criminals. While rejecting the earlier bail application, this Court had observed, that prior to the amendment of section 497, Cr.P. C. the delay per se in the completion of trial in cases of murder was not considered as a ground for bail and the concession granted to the under trial prisoners under 3rd proviso to section 497, Cr.P.C. was withdrawn by the 4th proviso in cases where they were considered to be desperate, dangerous and hardened criminals.

3. Mr. N.K. Jatoi learned counsel for the applicants has contended that in spite of finding of the Court that the applicants were desperate, dangerous and hardened criminals, they cannot be kept indefinitely in custody as that would amount to abuse of process of the Court, as in such cases the prosecution may deliberately cause delay in the proceedings or completion of the trial. He has relied upon an unreported judgment of this Court in Criminal Bail Application No.1010 of 1986 where a learned Single Judge of this Court under similar circumstances had released the applicant on bail on the ground that there was inordinate delay in the commencement of the trial. Mr. N.K. Jatoi has also relied upon the case of Riasat Ali and another v. The State P L D 1977 SC 480. This case pertains to the period prior to the insertion of 3rd proviso to section 497(1), Cr.P.C. in 1979 and 4th proviso which was added in 1983. Their Lordships observed as under:-

"From the information given by the learned counsel for the State it becomes clear that even though the petitioners have already been in custody in connection with this case for one year and nine months, they are likely to remain so far another 2 or 2 years before their trial can be expected to commence, thus making a period of nearly four years in 'custody without trial. Although this Court has generally taken the view that delay per se is not a good ground for allowing bail but we have no doubt at all in our mind that a delay of four years in the likely, commencement of the trial is indeed an unconscionable and inordinate delay, -such as would entitle the petitioners to be enlarged on bail. In our jurisprudence an accused person is presumed to be innocent unless found guilty by a competent Court, and accordingly to hold a person in custody for nearly four years without any prospect of even commencing the trial strongly militates against this concept so as to amount to an abuse of the process of the Court."

4. In the instant case the applicants- were arrested on 24-7-1984 and the case has not proceeded at all and the learned counsel for the State is unable to state as to when the case will be completed. Thus the applicants have remained in custody without trial for nearly four years.

Keeping in view all the facts and law discussed above, I order the applicants to be released on bail on furnishing surety in the sum of Rs.1,00,000 and P.R. bond in the like amount each to the satisfaction of the trial Court. The prosecution' is at liberty to move for cancellation of bail if sufficient evidence comes on record.

M.B.A./J-47/K Bail granted.