ABDUL MAJEED Versus THE STATE

ORDER

1. The applicant/accused who is one of the accused persons in the case registered through F.I.R. bearing No.226, dated 5-11-1990 registered at "A" Section Town Police Station Larkana under sections 302, 506(2), 114, 34, P.P.C. and 13-D, Arms Ordinance for the murder of Ali Gohar deceas4 seeks bail on statutory ground under section 497(i), 3rd proviso (b). The applicant was arrested on 4-5-1993 and since then he has remained in jail as undertrial prisoner and the trial has not yet concluded.

2. The learned Advocate Mr. Ali Murad Abro for the applicant/accused contended that the accused was arrested on 5-4-1993 and is in jail custody since then and his trial has not concluded and further that he is neither a previous convict nor a desperate, dangerous and hardened type of person and further that no adjournment has been sought by him or on his behalf to delay the trial of the case and if any adjournment sought by him does not debar him to claim bail on statutory ground of delay of 2 years in concluding the trial. The learned Advocate in support of his contention has placed his reliance on the following reported cases PLD 1986 Kar. 224, 1991 MLD 2262,1995 PCr.LJ 693 and PLD 1995 SC 49.

3. On the other hand Mr. Abdul Fatah Mughal the learned Advocate for the State has opposed the grant of bail on the ground that applicant after committing the crime of this case absconded away for about two and half years but on 4-5-1993 he was arrested and thereafter he sought many adjournments as such case could not come to an end further that applicant is desperate, dangerous and criminal type of person due to the act committed by him in this case as such he is not entitled for concession of bail.

4. The applicant filed an application for bail before trial Court which was rejected by the learned 2nd Additional Sessions Judge, Larkana on the ground that the act committed by him would show that the accused is desperate, dangerous, and hardened type of criminal. It is a fact that accused was arrested on 4-5-1993 and since then he has remained in custody as such he has completed the statutory period of more than two years in custody. The A report called from the S.H.O. concerned, police station and Superintendent District Jail, Larkana shows that applicant/accused is not previous convict and his conduct during the period in jail is satisfactorily and further report of the S.H.O. shows that the accused is not required in any other case.

5. It is provided in the 3 rd proviso, clause (b) of section 497(i), Cr.P.C as under:--

6. "(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:

7. Provided further that the provisions of the third proviso to this subsection shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Court, is a hardened, desperate. or dangerous criminal or involved in terrorism."

8. It is clear from this clause that the applicant has become entitled to be released on bail. He could only be declined if he would have been convicted previously for an offence punishable with death or imprisonment for life or has he been in the opinion of the Court a hardened, desperate or dangerous criminal or involved in terrorism. The learned trial Judge has expressed his opinion that the accused is a desperate, hardened, and dangerous criminal due to the act committed by him in this case. It has been held in the case of Rahim Bux and another v. The State PLD 1986 Kar. 224 that the expressions "desperate, -hardened and dangerous criminal", do not cover any person against whom there is only an accusation in shape of complaint or First Information Report. It has also been observed in the said case that a person who had been convicted or adjudged to be guilty of an offence, a person against whom there are only allegations/accusation in form of First Information Report or complaint and on basis of these allegations proceedings are pending against him in the Court of law in which he has yet to be adjudged as guilty of offence charged with cannot be treated as a criminal muchless a dangerous, desperate or hardened criminal.

9. As far as delay in proceedings of the trial is concerned I have gone through the diaries of the case which shows that though some adjournments have been taken on behalf of the applicant but he could not be held responsible for attributing inordinate delay in the disposal of the case. The diaries shows that the case has been adjourned as it was not fixed for final hearing, i.e. to say that uptil now the charge against the accused person has not been framed, therefore, it appears that the delay if any is not occasioned on I account of the act of the accused. From the record it also appears that although some adjournments were sought on behalf of the applicant. nevertheless it cannot be said that the applicant was responsible for attributing inordinate delay in the disposal of the case. Reliance in this behalf can be I placed upon Amir v. The State 1991 PCr.LJ 534 wherein it was remarked that the accused could not be penalised due to the act of his counsel. Reliance can also be placed upon Panjal v. The State 1990 PCr.LJ 2051 where it has been held that no delay in trial can be attributed to accused even if he has sought certain adjournments unless charge is framed.

10. In these circumstances the applicant/accused is entitled to be released on bail on statutory ground. This application is, therefore, allowed. The applicant is granted bail subject to his furnishing two solvent sureties in the sum of Rs.50,000 (Fifty thousand) each to the satisfaction of the trial Court.

11. N.H.Q./A-1592/K Bail allowed.