1990 P Cr (PLP)

Date of hearing: 30th June, 1990. On the report of Ghulam Hussain, a case was registered vide F.I.R. No.52 dated 27‑4‑1989 in Police Station, Balakot under section 5/10/11/16 Offence of Zina (Enforcement of Hudood) Ordinance, 1979 against Alam Zeb accused‑petitioner herein.

2. After his arrest, in the first round of his efforts to get himself released on bail, the petitioner could not succeed and in the final order in this behalf recorded by this Court on 25‑10‑1989, his request for bail was declined. However, a direction was issued to the effect that since the investigation in the matter was complete and the challan has been prepared, it should be put in Court as early as possible for an expeditious trial of the case.

3. By the instant application, the petitioner has sought his release on bail under 3rd proviso to subsection (1) of section 497, Cr.P.C. on the ground that the offence he has allegedly committed being not punishable with death, he has been detained for a continuous period exceeding one year and that his trial for such an offence has not so far concluded.

4. I have heard Muhammad Hanif Khan, Advocate learned counsel for the petitioner and Muhammad Aslam Khan Assistant Advocate‑General for the State and also perused the record of the case with considerable degree of care.

5. It is contended on behalf of the petitioner that he was arrested on 3‑5‑1989 and despite a direction issued by this Court on 25‑9‑1989, the trial could not commence till 9‑4‑1990 when the petitioner was charge‑sheeted by the learned Sessions Judge, Abbottabad, Camp Mansehra. It is further contended that after submission of the challan and commencement of his trial the delay thus caused in the conclusion of the trial, having not been occasioned by any act or omission of the accused, as such the petitioner is entitled to the concession of bail inasmuch as he has been in detention for a continuous period exceeding one year.

6. On the other hand, the learned counsel for the State maintained that the delay in the commencement and conclusion of his trial tan rightly be attributed to the petitioner on account of the bail applications which he has been making from time to time and for which the file of the case had to be requisitioned by the Courts concerned. He also submitted that, in the circumstances, the benefit of 3rd proviso of section 497(1) Cr.P.C. cannot be extended to an accused person who has contributed towards the delay in the conclusion of the trial, in any manner, by an act or omission on his part. He relied on decision in the case of Ashiq Hussain and 3 others v. State reported in 1989 S C M R 1580.

7. I have given my serious consideration to the submissions made by the parties in support of their respective pleas.

8. Admittedly the petitioner was arrested on 3‑5‑1989; and although a year has elapsed, yet his trial has not yet concluded. It is also not disputed that the applications for release on bail, made from time to time, by the petitioner, were all before the formal submission of his challan in the trial Court and no such move was made by the petitioner thereafter or during the course of his trial.

9. The question that falls for determination thus is that moving bail applications for his release by an accused person, particularly before the formal commencement of his trial, whether shall tantamount to such act or omission of the accused person towards the delay, if any, in his trial, as would disentitle him of his right to be released on bail which, with the passage of the requisite period under 3rd proviso to subsection (1) of section 497 Cr.P.C. has legally accrued to him.

10. A reference to the record would indicate that the time consumed in making the bail applications by the petitioner, from time to time, was before the commencement of the trial. It is also pertinent to note that seeking bail of an accused person can be termed as his right which immediately accrues to him A when the case is registered and he can exercise the same before, as well as after, his formal arrest on the analogy that every accused person cannot be held guilty of the offence he is charged with unless proved as such after giving him a fair I trial.

11. In this context of the matter I am clear in my mind that the exercise of right of seeking bail cannot in any manner be stretched to an act of the accused R person tantamounting to occasioning delay in his trial and that too irrespective of the fact as to what fate such moves of his have met.

12. In Ashiq Hussain's case 1989 S C M R 1580, the facts were materially different than those of the instant case and the conclusions arrived therefrom have hardly any relevance to the case in hand save, of course the rule laid therein that calculations of the time constituting delay caused at the instance of the defence is not the intention of law in 3rd proviso to subsection (1) of section 497 Cr.P.C. and I with great respect, would have followed the same had there been any occasion of its applicability in the present case.

13. Viewed the matter in the perspective of the foregoing discourse, I have arrived at an inescapable conclusion that the application made by the accused petitioner seeking his bail after his arrest before the commencement of the trial would not lead to an inference that the delay in the conclusion of his trial has been occasioned by, or on behalf of, the accused‑petitioner and, in the circumstances, the petitioner ex facie appears to be entitled to the benefit of bail under clause (a) of 3rd proviso to subsection (1) of section 497, Cr.P.C.

14. Resultantly this application is allowed and I hereby order the petitioner to be released on bail provided he furnishes bond in the sum of Rs. 75,000 with three sureties in the like amount each to the satisfaction of Additional Sessions Judge, Mansehra.

15. The files of the case shall be remitted back to the trial Court forthwith. M.BA./1092/P Bail allowed.