EJAZ AHMED vs THE STATE
This matter concerns a bail application filed by the accused, who was facing a fresh trial for murder following a remand order by the High Court. The core legal question was whether the accused, having been in custody for nearly three years, was entitled to statutory bail under the third proviso to Section 497 of the Code of Criminal Procedure 1898, despite the trial being ordered to commence afresh. The trial court had previously denied bail, reasoning that the period of detention for the purpose of statutory delay should restart from the date of the remand order. The High Court held that the right to bail under the third proviso is a statutory right, not a discretionary one, and that the delay in trial was not attributable to the accused. The court ruled that the period of detention is calculated from the initial arrest, not the remand order. The key principle laid down is that the benefit of the third proviso to Section 497, Cr.P.C. is a mandatory right unless the accused is a hardened, desperate, or dangerous criminal, or the delay is caused by the accused or their counsel.
- Does the period of detention for the purpose of statutory bail under Section 497, Code of Criminal Procedure 1898 reset upon the remand of a case for a fresh trial?
- Is the grant of bail under the third proviso to Section 497, Code of Criminal Procedure 1898 a discretionary power of the court or a right of the accused?
- Under what circumstances can the benefit of the third proviso to Section 497, Code of Criminal Procedure 1898 be denied to an accused?
- Section 302, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
1. M.A. 1018 of 1999
1. Granted subject to all just exceptions.
2. Crl. Bail Application No,765 of 1999
2. The applicant is facing trial in the Court of III-Additional Sessions Judge South arising out of F.I.R.
3. No, 168 of 1996 under section 302, P.P.C. Of Police Station Ferere, South Karachi.
4. ' Complainant Muqtadar Zaman lodged F.I.R. At P.S.F Ferere disclosing therein that on 16-8-1996, he was at his house when P.W. Saleem informed him that applicant Ejaz Ahmed had caused Churi blows to his brother Abdul Hameed who has been removed to Jinnah Hospital. The complainant on learning the above facts visited Jinnah Hospital and came to know that applicant had caused Churi blows to his brother Abdul Hameed at about 10.45 a.m. At Malbari Hotel near Qadir Pan Wala who succumbed to injuries. The said incident was witnessed by P.W. Habib-ur-Rehman, Muhammad Shafi and Sikandar Ali. The motive as disclosed was that one day prior to the incident, the applicant had demanded Rs, 100 from the deceased which the latter refused to pay and same was the reason for his annoyance with the deceased.
5. ' The police took up investigation and arrested the present applicant on 28-8-1996.
6. ' The applicant was tried and was ultimately convicted by learned III- Additional Sessions Judge Karachi South on 22-4-1998, hereby he was awarded sentence for imprisonment for life ' The applicant preferred an appeal against the aforesaid conviction and this Court vide its order dated 3-4-1999 remanded the case to trial Court for holding fresh trial of applicant.
7. ' Pursuant to the aforesaid judgment of this Court, the applicant is facing trial afresh.
8. ' The applicant moved an application for his release on bail under the right of third proviso to section 497, Cr.P.C. The bail plea of applicant was rejected by trial Court on 29-5-1999. The reason for refusing the bail to applicant by the learned trial Court is that the prosecution had concluded trial and that the case was remanded back for fresh trial on the request of applicant, hence the period of trial would now commence from the order of fresh trial passed by Hon'ble High Court of Sindh vide judgment dated 3-4-1999 and not from the date of the arrest of the accused.
9. ' It is contended by the learned Advocate appearing for applicant that the accused was arrested on 28-8-1996 and that he is in continuous detention without any fault on his part. The impugned judgment was set aside because of certain illegalities and irregularities and, therefore, the case was remanded back for holding trial afresh. He further asserted that neither the delay is caused by accused nor the Advocate appearing on his behalf. He further contended that the accused is neither desperated, dangerous nor hardened criminal. As such, his case would not by hit by fourth proviso of section 497, Cr.P.C. And that the grant of bail under third proviso is the right accused which cannot be denied under the discretion of Court.
10. ' Mr. Arshad Lodhi learned A.A.-G. Appearing for the State has raised no objection to the grant of bail on statutory delay, as according to him the accused has remained in custody for nearly about 3 years and the fresh trial would take sufficiently a long time. The peculiar circumstances of this case indicate that the accused is behind the bars for few days short of 3 years and his trial is ordered to commence afresh.
11. ' Benefit of Third Proviso to section 497, Cr.P.C. Can be denied to accused when there is something in the offender like his previous conviction, being hardened desperate or dangerous criminal and further the right of bail can be denied if the delay in the trial has occasioned by his act or by the act of an Advocate appearing on his behalf. The aforesaid reasons can only justify refusal of bail to him.
12. Admittedly the accused is in custody over a statutory period which has expired long back and the delay is not attributable to him. Keeping accused in prison without any prospects of trial and keep him rotting in jail till conclusion of his trial would indeed be an hardship and prejudicial of his interest and rights guaranteed to him by proviso Third of section 497, Cr. P.C. The right of grant of bail under said proviso is not discretionary with the Court but it is the right of accused, if otherwise available to him under the law.
13. ' In view of the aforesaid reasons and circumstances of this particular case, I feel myself pursuaded to extend benefit of Third Proviso to accused and admit him to bail subject to furnishing of surety in the sum of Rs, 3,00,000 and P.R. Bond in the like amount to the satisfaction of the trial Court.