MANSOOR ALI and 6 others vs THE STATE
This matter comes before the Sindh High Court upon a bail application filed by seven applicants facing trial under sections 399, 402, 353, and 34 of the Pakistan Penal Code 1860 in FIR No. 70 of 1995 registered at Police Station Darkhshan, Karachi South. The core legal questions involve whether post-arrest bail should be granted on the grounds of continuous statutory delay in the conclusion of the trial when the accused have been in custody for nearly six years, and whether the fourth proviso to section 497(1) of the Code of Criminal Procedure 1898 permanently bars bail for convicts whose appeals are pending in other cases. The Court held that the fourth proviso does not contemplate depriving an undertrial prisoner of liberty indefinitely, and bail may be sought invoking the third proviso due to inordinate delay not attributable to the accused. Consequently, the Court allowed bail to all applicants subject to surety. The key principle laid down is that the bar under the fourth proviso of section 497, Code of Criminal Procedure 1898 does not override the right to bail on grounds of inordinate and unprosecuted delay in trial under the third proviso.
- Does the fourth proviso to section 497(1) of the Code of Criminal Procedure 1898 indefinitely deprive an undertrial accused of the right to seek bail?
- Can an accused person invoke the third proviso of section 497 of the Code of Criminal Procedure 1898 on the ground of inordinate trial delay despite a conviction in another pending case?
- Whether continuous custody for nearly six years without delay attributable to the accused constitutes sufficient ground for granting post-arrest bail?
- Section 399, Pakistan Penal Code 1860
- Section 402, Pakistan Penal Code 1860
- Section 353, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
' The applicants are facing trial for offences under sections 399, 402, 353, 34, P.P.C. (F.I.R. No, 70 of 1995, registered at Police Station, Darkhshan, Karachi, South) before the Court of Ist Additional Sessions Judge/Special Judge, (STA) Karachi South.
2. The bail is being sought firstly, on the ground that all the applicants are in continuous custody since 2-4-1995 and secondly, that even though there is allegation of firing between the parties yet, none on either side has received any injury.
3. Mr. Habib Ahmed learned A.A.-G. Appearing for the State opposes the bail plea on the ground solely that the applicants have been convicted and sentenced to death in another case and their appeals are pending decision before this Court. The case of the applicants due to aforesaid conviction is hit by fourth proviso to subsection (1) of section 497, Cr.P.C.
4. The applicants are in Jail since 6 years (less three weeks). Delay has not been attributed to them.
There is nothing contained in the fourth proviso contemplating to deprive indefinitely an under trial accused of his liberty of being released on bail. Even in view of the fourth proviso bail can be sought by accused by invoking third proviso (on the ground of inordinate delay in conclusion of his trial). Reference in this connection may be made to the case of Gul Muhammad and 2 others v. The State reported as 1987 PCr.11 787 and Fakir Ali v. The State 1990 PCr.LJ 72.
5. We, therefore, allow bail to all the applicants namely (1) Mansoor Ali, (2) Umer Hayat, (3)
Muhammad Fazal, (4) Karimullah, (5) Syed Asif Ali, (6) Muhammad Gulzar and (7) Ahmed Zahoor, subject to their furnishing a solvent surety in the sum of Rs, 1,00,000 (Rupees one lac only) each and P.R. Bond in the like amount to the satisfaction of the trial Court.