YOUSIF vs THE STATE

ORDER

1. ' The applicant Yousif son of Rahim by caste Kako Panhwer is facing trial for the offences under sections 302, 504 and 34, P.P.C., Crime No,7 of 1992 of Police Station Rukkan, District 'Dadu before IInd Additional Sessions Judge, Dadu. The applicant remained fugitive from the law and was arrested on 27-8-1996. The bail application moved on merits on behalf of the applicant was rejected vide order, dated 2-11-1996. The second bail application was also rejected on 4-6-1998, the third bail application moved on behalf of the applicant on the ground of statutory delay under the third proviso of section 497, Cr.P.C. Was also dismissed by the learned trial Court by order, dated 22-12- 1998. Hence the present application before this Court. The bail application was dismissed by the learned trial Court solely on the ground that the applicant remained fugitive from the law from the date of the report till his arrest. Though the learned trial Court came to the conclusion that the period of detention exceeds two years and that the delay has been occasioned on account of non-production of the applicant from the jail.

2. ' The counsel for the applicant has contended before me that the applicant has completed the statutory period of two years in detention as such he is entitled for the concession of bail under the proviso 3 of section 497, Cr.P.C. In spite of the fact that he remained fugitive from the eyes of law and in support of his contention, he has relied on case of Roshan and others v. The State wherein bail to the petitioners were granted on the ground that the Court is not called upon to consider merits of the case and his only to come to an independent conclusion, whether the case of accused fell within the purview of section 497, proviso (iii), Cr.P.C.

3. ' The learned Additional Advocate-General Mr. Mian Khan Malik has opposed the grant of bail and contended that fugitive from the law is not entitled for the concession of bail even on the statutory delay under the proviso (iii) of section 497, Cr.P.C. The learned counsel has referred case of Muhammad Sadiq and others v. Sadiq and others reported in PLD 1985 SC p.182 wherein the bail was cancelled and leave grant order was to the following effect:-- ' "Apart from the question whether term ' further inquiry' occurring in section 497(2), Cr.P.C. Has been correctly construed and what was effect of abscondence of accused, for a period of about six months, on their right to grant of bail is to be considered. The second case Awal Gul v. Zawar Khan and others reported in PLD 1985 SC 402 wherein it was unexplained noticeable abscondence disentitled a person to concession of bail notwithstanding merits of case."

4. ' The above two cases do not advance the plea as contended by the learned Additional Advocate- General. In the above two cases referred by him the question was whether the case for grant of bail under the provisions of section 497(2) was made out to the accused who remained fugitive in the eyes of law.

5. ' Mr. Mian Khan Malik, the learned Additional Advocate-General also referred the case of Iqbal Brohi v. The State reported in 1998 PCr.LJ 2066 wherein the learned single Judge of our own High Court declined to grant the bail on statutory delay where the delay was also attributed to the defence as well as the prosecution with the facts that the applicant was also fugitive from the law as proclaimed offender and his act of killing was very callous, horrible and brutal meaning thereby that the applicant therein was termed to be desperate, and dangerous person who are not entitled for the concession of bail.

6. In the present case abscondence of the applicant simplicitor will not disentitle him from the concession of bail under the proviso (iii) of section 497, Cr.P.C. He has completed the detention period of more than two years and the delay in trial due to non-production of the applicant by jail authorities cannot be attributed to him. Under the circumstances the applicant is entitled for concession of bail on the statutory delay, under the proviso (iii) of section 497, Cr.P.C. I, therefore, grant bail in the sum of Rs,1,00,000 (Rupees one lac) and P.R. Bond in the like amount to the satisfaction of the trial Court.