GHULAM ABBAS vs THE STATE

ORDER

' The petitioner is involved in case F.I.R. No.353 of 1999, dated 13-10-1999 under sections 324/367/334/337-F(iv)/148/149, P.P.C. Registered at Police Station Sadar, Shujabad, District Multan, on the statement of Atta Muhammad son of Ghulam Hussain alleging that on the day of occurrence at about 12-00 noon complainant alongwith his brother Mumtaz Hussain reached at the shop of Ijaz Ahmad son of Allah Bachaya in the area of Basti Lal Jahanian wherefrom they boarded in a wagon and that Mumtaz Hussain brother of the complainant was talking with Abid Hussain and meanwhile complainant went to the agency of Khuda Baldish for purchasing a diesel oil and that he was in the midway to his destination when a car and a Yamaha motorcycle reached the spot and accused persons named in the F.I.R. Armed with some weapons came out from the vehicles and caught hold of Abid Hussain and took him in the car. On the hue and cry of the complainant one Khalil Ahmed came at the spot on the tractor and they chased the accused persons through that tractor. When they reached in the area of Chak No.56/M, they saw car and the motorcycle parked at the road side and that in their presence Ghulam Abbas accused cut down the right hand of Mumtaz Hussain with the razor. The accused Sabir Hussain and Sikandar Khan was alleged that they caught hold of Mumtaz Hussain injured while Jalal accused alleged to cut .The vein of right leg, and Muhammad Asghar accused had cut clown the vein of left leg of the injured and that when they reached the spot they were threatened similar dire consequences if they tried to come near the spot and as such the accused persons fled away from the spot. The motive as narrated in the F.I.R. Is that a scuffle took place between Muhammad Zafar accused with Nadir Hussain due to some dispute of a land, as a result whereof the F.I.R. No.348 of 1999 was registered at Police Station Sadar, Shujabad. So, the present occurrence took place due to this motive.

2. Earlier the bail was moved by the petitioner before the learned Additional Sessions Judge Camp at Shujabad District Multan but the same was dismissed on 15-5-2000, with the observation that the present petitioner is accused of having amputated right hand of Mumtaz Hussain injured with razor and he has also allegedly played commanding role and has committed an offence in which both hands of injured Mumtaz Hussain were cut by razor, mercilessly. The offence is not only heinous but brutal and shocking also. The petitioner then moved bail application bearing No. Criminal Miscellaneous No.146/B of 2001 in the High Court which was withdrawn on 25-1-2001.

3. Now the bail is pressed on the grounds that the petitioner is entitled to be released on the statutory ground of delay in conclusion of his trial and that this statutory right has been given to the petitioner under clause (a) of the third proviso to subsection (1) of section 497, Cr.P.C. And that as per alleged offences the petitioner being not accused of any offence punishable with death and he has been in jail for the last 22 months without any progress in the trial and that he has got a vested right of the referred statutory provision of law for concession of bail.

4. On the other hand, the learned counsel for the State has opposed the bail application and supported the order of the learned Additional Sessions Judge.

5. I have given due consideration to the valuable arguments on both sides.

6. Without touching the merits of the case the tentative assessment shows firstly that the petitioner is accused of offence under sections 367/324/ 337-F(iv)/148/149, P.P.C. None of which is punishable to the death. Secondly, he is detained in the said offences for a continuous period of 22 months (i.e. Exceeding one year).. Thirdly, the trial for such offence has not concluded. Fourthly, there is no allegation of the accused being hardened, desperate or dangerous criminal, or involved in terrorist activities. The law applicable to such a case is contained in clause (a) of third proviso to subsection (1) of section 497 of the Code of Criminal Procedure 1898 (V of 1898), which reads as under:-- ' Section 497. When bail may be taken in case of non-bailable offence.- (1) When any person accused of any non-bailable offence is arrested or detained without warrant by an Officer-in- Charge of a Police Station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years: ' Provided ..............................................................................

' Provided ..............................................................................

' Provided further that the Court shall, except where it is of opinion. That the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf, direct that any person shall be released on bail--

(a) who being accused of any offence not punishable with death has been detained for such offence for a continuous period exceeding one year and whose trial for such offence has not concluded; or (b)

' 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.

(2)

(3)

(4)

(5) ..............................................................

7. In the above circumstances, the petitioner is entitled to the grant of bail and he is granted bail subject to his furnishing the bail bond in the sum of Rs.2,00,000 (Rupees two lacs only) with two sureties in the like amount to the satisfaction of the trial Court.