Sh. ZAHEER AHMAD vs QAIMAT ZAMIN and anothers
This matter arises from a petition for leave to appeal against the order of the Peshawar High Court granting bail to the respondent, who is facing trial for murder and assault within the premises of the Sessions Court, Swat. The core legal question is whether the period for which the criminal case against the respondent remained pending in forums under the PATA Regulation—subsequently declared unconstitutional by the Supreme Court—can be counted towards the statutory period prescribed under the third proviso to subsection (1) of section 497 of the Code of Criminal Procedure 1898 for the purpose of granting post-arrest bail on the ground of statutory delay. The Supreme Court granted leave to appeal to examine this question, holding that arguable points of law regarding the computation of the statutory detention period under the Code of Criminal Procedure 1898 in cases originating from PATA Regulation jurisdictions require detailed consideration.
- Can the period of detention under an unconstitutional PATA Regulation be counted towards the statutory period for bail under section 497 of the Code of Criminal Procedure 1898?
- Whether bail can be granted on the ground of delay when the statutory period under section 497 of the Code of Criminal Procedure 1898 has not been fulfilled in the trial court?
- Section 497(1), Code of Criminal Procedure 1898
ORDER
1. ' MUKHTAR AHMED JUNAJO, J.-Leave to appeal is sought against bail granted order, dated 25-10- 1994 passed by a learned Single Judge . In Chamber of the Peshawar High Court.
2. ' Respondent Qaimat Zamin is facing trial in the Court of the Additional Sessions Judge, District Swat for having given chhuri blows to complainant Ihtesham Zaheer and his father Zaheer Ahmed on 17-9-1991 at 8.00 a.m. In premises of the Sessions Court, Swat. Ihtesham Zaheer died as result of the injuries caused to him. Respondent Qaimat Zamin was caught at the spot - alongwith the chhuri used by him. Motive for the offence was dispute over some property in respect of which Shariat Case No,72/2 of 1991 was pending in the said Court.
3. ' The respondent moved the Assistant Commissioner, Swat, for bail but his prayer was rejected on 4-7-1992. He then moved Additional Commissioner, Malakand Division who refused bail under an order, dated 14-1-1993. The respondent moved the Home Secretary, Government of N.W.F.P., who dismissed the bail petition on 25-10-1993. The respondent again moved S.D.M. Swat for bail on medical grounds but his prayer was rejected on 30-5-1994. He moved fresh application for bail in the Court of Additional Sessions Judge, Swat, who rejected the same on 31-7-1994: Thereafter, the respondent invoked jurisdiction of the High Court and his application for bail was granted under the impugned order on 25-10-1994 by a learned Single Judge of the Peshawar High Court on delay ground. Hence this petition.
4. ' Mr. Muhammad Nawaz Abbasi, learned counsel for the petitioner, argued that the condition of third proviso below subsection (1) of section 497, Cr.P.C., was not fulfilled, because in the first instance the case against the respondent was pending in a Court of Malakand Division and that the respondent had not remained in custody for the statutory period after receipt of case against him in the Court of Additional Sessions Judge, Swat. Prior to transfer of the said case to the Court of Additional Sessions Judge, it was subject to PATA Regulation which has been held unconstitutional by this Court.
5. Leave to appeal is, therefore, granted to consider, whether the period for which the case against the respondent remained pending in the forum under PATA Regulation, can be counted towards the period mentioned in third proviso A below subsection (1) of section 497, Cr.P.C., for the purpose of grant of bail to the respondent.