2017 P Cr (PLP)

MALIK HAQ NAWAZ, J.

The petitioner was booked for above offences vide FIR No.41/2012 of Police Station Basin, Gilgit.

2. The precise story of the occurrence is that on the fateful day i.e. 01-07-2012 one Imran Hussain lodged FIR at Police Station Basin, Gilgit regarding murder of one Safder Hussain son of Muhammad Hussain and sustaining injuries by him and one Shoaib by some unknown assailants who decamped from the place of occurrence in a car.

3. The local police carried out investigation and booked the present petitioner for the above offences and committed him to judicial lock up, where he is facing trial.

4. The petitioner applied for bail in the trial Court, which was refused vide order dated 29-06-2015, hence this petition.

5. The learned counsel for the petitioner submitted at the very outset, that there is no worth reliance evidence against the accused except conditional confessional statement recorded by SSP Gilgit under section 21-H and absconcion, which was not deliberate. The learned counsel stated that no conviction could last on such types of sketchy accusations and prosecution at least has to establish a prima facie case against the accused. The learned counsel submitted that the petitioner is behind the bars since last about over three years and his trial is proceeding in a very low pace, which is against the spirit of fair trial.

6. On the other hand the learned Dy. Advocate General submitted that the accused remained absconder for over three years and such a long absconcion disentitles him from grant of bail. The learned Dy. Advocate General further stated that the trial of the petitioner is in progress and is to be completed shortly and in the present scenario it would not be proper to release petitioner on bail.

7. We heard both the parties. The petitioner is not nominated in the FIR nor any other worth reliance evidence is available on record to establish a prima facie case against him except a statement under section 21-H and his absconcion. As well as the contention of the learned Dy. Advocate General is concerned that since trial of the case has commenced, therefore the concession of bail should not be extended to the petitioner at this stage. This contention is repelled. No doubt there is a common practice of superior Courts not to interfere in bail matter where trial of the case is in progress only with a view to avoid prejudice to either of the parties, but at the same time bail is right of an accused, and when he is found entitled for the grant of bail, he cannot be denied such concession on the pretext of practice because when there would be a confrontation in practice and right, the clear answer is that right will prevail over practice. In criminal cases when case of an accused for grant of bail is made out, he should not be kept in jail for a moment. The detention of petitioner in jail and that too in a case of Anti-Terrorism, over a period of three years without any substantial progress in trial militates against the spirit of law itself and shows lethargic and unwarranted attitude of the Court. Necessary directions were issued in jail reform case by the Supreme Appellate Court that the case of under trial prisoner shall be taken up on day to day basis and the trial Courts were directed to ensure compliance. Chief Court also issued directions to all the Sessions/Additional Sessions Judges to avoid grant of unnecessary adjournments to either parties and the Courts are strictly following the directives of Supreme Appellate Court and this Court. In the Anti-Terrorism cases, where law itself provides for speedy trial, the cases are lingering on since years, which way of working is highly depreciated as it offends against the dictates of justice and encroaches upon the liberty of the accused booked in Anti-Terrorism cases. A word of caution is issued and such attitude if noted or brought into our knowledge will be strictly dealt with in accordance with law. 7(sic.) We in the result of above discussion vide our short order dated 23-06-2016 allowed bail to the petitioner which reads: "The instant bail petition is accepted. The petitioner/accused be released on bail subject to his furnishing bail bonds in the sum of Rs. 1,000,000/- (ten lac only) with two sureties each in the like amount to the satisfaction of trial Court."

8. The instant petition is disposed of accordingly. File. HBT/81/GB Bail granted.