MISKEEN SHAH vs THE STATE

ORDER

' Applicant Miskeen Shah who is facing trial in Crime No, 398 of 1987, Police Station Joharabad, under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979, applied for bail before learned Sessions Judge (Central) Karachi on the ground of statutory delay, but his prayer was refused vide order, dated 7-1-1989. He then approached this Court in Criminal Bail Application No, 248 of 1989, which was dismissed vide order dated 16-4-1989, with following directions:-- "I, however, direct the trial Court to proceed with the case day to day, if necessary, keeping in view the work load of the Court. The learned trial Judge shall avoid postponement of the trial unless found unavoidable in future and shall conclude the trial within three months from the date of this order and report compliance. Mr. A.G. Mangi also states that he would issue necessary direction to the concerned. It would be open for the applicant to repeat his application if so advised after material witnesses are examined by the trial Court."

2. No progress could be made during all this period, although all possible coercive steps were taken by the trial Court. The applicant repeated the application for bail, but again without success.

He has now approached this Court with the same prayer.

3. I have heard Mr. M.S. Khattak, learned counsel for applicant and Mr. Shaukat H. Zubedi, learned AA.-G. For State. The latter has raised no objection to the grant of bail to present applicant.

4. Admittedly the applicant was arrested on 9-11-1987 in a case under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979, which is not punishable with death. He is in custody for a continuous period exceeding one year and the trial has not been concluded. The record also shows that after the dismissal of Criminal Bail Application No, 248 of 1989, no adjournment is sought by or on behalf of the applicant. In other words he is not instrumental in causing delay in trial of this case.

The case of the applicant again does not fall within the mischief of fourth proviso to section 497, Cr.P.C. And the report of the concerned police obtained by the trial Court in this behalf is self- explanatory.

5. Inordinate delay in disposal of a case amounting to abuse of the process I of law, was considered as a ground for allowing bail to the accused even in a murder case, but this exercise was controlled by the discretion of the Court concerned. The third proviso to section 497, Cr.P.C.

Made the ground of delay certain and the accused were extended concession of bail as of right, if the requirements of this proviso were satisfied. The case of Nazir Hussain v. Ziaul Haq, reported in 1983 SCMR 72, is relevant in this behalf. In this view of the matter the applicant who is in continuous detention of more than one year is entitled to the grant of bail as of right and not as a matter of grace. The only fact that he was found in possession of huge quantity of powder of heroin should not come in his way when otherwise he fulfills the requirements prescribed by law. Where the legislature in its wisdom thought it proper to lay down certain conditions wherein the discretion may be exercised and those conditions are satisfied, it goes without saying that the Courts have to exercise their discretion in accordance with the will of legislature. Accordingly bail is granted to applicant in the sum of Rs,5,00,000 (Rupees five lac) with two sureties in the sum of Rs,2,50,000 (Rupees two lac fifty thousand) each with P.R. In the like amount to the satisfaction of learned Sessions Judge (Central) Karachi.