EHSAN ALI vs THE STATE

This is an application for grant of bail to Ehsan Ali, petitioner, in a case under Article 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 (P.O. No.4 of 1979) registered at Police Station, Tank, in the District of Dera Ismail Khan.

2. In the first round, the plea of bail raised on behalf of the petitioner was dismissed by the Court of Session, Dera Ismail Khan, and also by me on merits.

3. Mr. Sanaullah Khan Gandapur, the learned counsel for the petitioner, submits that the case of the petitioner is covered by the 3rd proviso to section 497, Cr.P.C. In that the petitioner was arrested on 8-8-1989 and was challaned to the Court on 13-2-1990, nonetheless, the trial has not yet even commenced, muchless than concluded. According to the learned counsel, delay in this case is not attributable to the petitioner and, further that the prosecution has not been able to make out any case for invoking the bar contained in the 4th proviso to section 497, Cr.P.C.

4. Mr. Hamesh Gul Khan, Advocate, appearing on behalf of the State, on the other hand, has opposed the plea of hail can the ground that delay in commencement and conclusion of the trial in this case was attributable to the accused-petitioner himself, inasmuch as, the file of the case on requisitioning by this Court was lying here and thereafter when it was received in the trial Court, the evidence could not be recorded due to the engagements of the learned Sessions Judge in the election duties.

5. It is well-settled that the delay which has occasioned in commencement and conclusion of the trial on the ground of requisitioning the file by this Court cannot be attributed under the law to the accused-petitioner in that, it is the inherent right of the accused to claim bail from the Courts. It is not shown that the petitioner has been guilty of making successive and frivolous bail applications and thus bringing about delay in the commencement and conclusion of his trial. The perusal of the order sheets would show that at the earlier stage, the petition for bail of the petitioner was dismissed by me on 14-4-1990. The file of the case is shown to have been received in the Court of Session on 14-5-1990. From this, it follows that the Criminal Moharrir of this court has detained the file for about a month in this Court and the Criminal Moharrir of the Court of Session put up the file to the learned Sessions Judge after about four months. It would thus, be seen that the delay caused in the commencement and conclusion of the trial in this case is not at all attributable to the petitioner. It is now well-settled on the authority of Nazir Hussain v. Ziaul Haq 1983 SCMR 72 that the benefit of the 3rd proviso to section 497(1), Cr.P.C. Cannot be denied when there is nothing against the accused to show that he was a previously convicted offender, or a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal. The last mentioned condition can alone justify the refusal of the bail. In the present case, these disabilities are not discernible from the material placed on the file, nor the learned Sessions Judge has referred to any of these considerations while refusing bail to the petitioner:

6. In the circumstances, the petitioner is admitted to bail, subject to his furnishing bail bonds, in the sum of .Rs.50,000 with two sureties in the like amount each to the satisfaction of Assistant Commissioner, Dera Ismail Khan.

7. Before parting with this petition, the Additional Registrar of this Court and the learned Sessions Judge, Dera Ismail Khan, are directed to call upon the Moharrirs concerned as to why both the officials have been privy to the delay in commencement and conclusion of the trial of this case and submit their replies to me within a fortnight.

N.H.Q./1356/P