1995 P Cr (PLP)

In case if a bail plea is preferred on the ground :of statutory delay then it is the duty of the Trial Courts to see and ascertain whether sub-clause (a) or (b) to the third proviso is attracted in the case? When the applicant/accused was arrested and how much period of detention he has undergone? And how much period in delay of the trial was occasioned by an act or omission of the accused or by any other person acting on his behalf. A trial Court before whom the bail application is filed on the ground of statutory delay should compute the period of delay and then to form an "opinion" about delay in conclusion of trial. After this exercise, the trial Court before extending benefit of third proviso has to see whether the applicant/accused falls with the category of any of the objections as mentioned in the fourth proviso. The burden to show that the applicant/accused is a criminal, hardened, desperate or dangerous or is terrorist is initially upon the prosecution but nowadays the trial Courts have adopted a practice for calling reports from the Jail authorities where the accused/applicant is confined. High Court has never encouraged such practice by the trial Courts. (d) Criminal Procedure Code (V of 1898)

S. 497(1), third proviso

Bail on statutory ground

Delay attributable to accused

Unless a charge is framed by the Court, no delay in trial can be attributed to accused even if he has sought certain adjournments.-- [Delay]. Punjab v. State 1990 PCr.LJ 2051 ref. Ali Nawaz Ghanghro for Applicant. Yar Muhammad Abbasi for the State. Applicant has filed this bail application merely on the ground of statutory delay as more than two years have passed after his arrest and despite that the trial has not yet concluded. The offences is charged under section 324, 458, P.P.C. read with section 13-D of Arms Ordinance, 1965. I have heard Mr. Ali Nawaz Ghanghro, Advocate for the applicant/accused and Mr. Yar Muhammad Abbasi for the State. It is argued by Mr. Ali Nawaz Ghanghro, Advocate for the applicant that the punishment provided under section 324, P.P.C. is maximum for 10 years, the offence under section 458, P.P.C. is punishable upto 14 years, while the punishment prescribed for the offence under section 13-D of the Sindh Arms Ordinance, 1965 is upto 7 years' R.I. as no prohibitory bore was involved in the case. The learned trial Court has not considered all the material and relevant facts for computing the delay. On the question of delay the learned trial Court has simply stated that the witnesses are in attendance after framing of the charge i.e. 21-12-1994 and that the accused has failed to arrange for his Advocate. In fact the learned trial Court should have held enquiry to ascertain the fact that where and upto what extent the accused has attributed delay in the conclusion of the trial. There is 4th proviso to section 497, Cr.P.C. which also require preliminary investigation by the trial Court, but no such exercise was followed by the learned trial Court. This Court as well as other Superior Courts of this country have held on several occasions that where the time prescribed in the third proviso to section 497(1), Cr.P.C. is completed and that such delay in conclusion of trial is not attributed to the accused, then as a matter of right he is entitled to bail, provided further, his case does not fall with the prohibition of fourth proviso to section 497(1), Cr.P.C. For any reference see the cases of Shauki alias Shaukat v. The State 1984 SCMR 613, Zulfiqar Ali v. State 1990 PCr.LJ

822. In the instant case the IIIrd Assistant Sessions Judge, Larkana, without applying its judicial and conscious mind and in a slip shot manner has dismissed the bail application. In case if a bail plea is preferred on the ground of statutory delay then it is the duty of the Trial Courts to see and ascertain whether sub-clause (a) or (b) to the third proviso is attracted in the case? When the applicant/ accused was arrested and how much period of detention he has undergone? And how much period in delay of the trial was occasioned by an act or omission of the accused or by any other person acting on his behalf. A trial Court before whom the bail application is filed on the ground of statutory delay should compute the period of delay and then to form an "opinion" about delay in conclusion of trial. After this exercise, the trial Court before extending benefit of third proviso has to see whether the applicant/accused falls with the category of any of the objections as mentioned in the fourth proviso. The burden to show that the applicant/accused is a criminal, hardened, desperate or dangerous or is terrorist is initially upon the prosecution but now a days the trial Courts have adopted a practice for calling reports from the Jail authorities where the accused/applicant is confined. This Court has never encouraged such practice by the trial Courts. But in the instant case, no procedure as stated above was adopted by the Court which has resulted in great in justice to the applicant/accused. This will not be advisable for the High Courts to adopt such practice for computing delay and to hold summary enquiry during hearing of bail applications. For the purpose of securing the ends of justice and to give effect to the provisions of the Criminal Procedure Code as provided under section 561-A, I am inclined to remand this bail application to the trial Court for rehearing. In the circumstances, I hereby set aside the impugned order, dated 2-4-1995 passed by the learned IIIrd Assistant Sessions Judge, Larkana whereby the bail application of the accused was rejected, with the direction to re-consider the bail plea of the accused on the ground of statutory delay as well as in view of 4th proviso to section 497(1), Cr.P.C. In this regard learned trial Court should also call report from the Superintendent Prison where" the accused is confined. I may also observe here that despite the fact that accused was arrested on 2-5-1993, the charge was framed by the learned trial Court on 21-12-1994 (after a delay of nearly 20 mont4s), therefore, the learned trial Court should keep in view the law laid down by this Court in the case of Panjal v. State 1990 PCr.LJ 2051 whereby it was held by a learned Single Judge of this Court that unless a charge is framed by the Court no delay in trial can be attributed to the accused persons, even if he has sought certain adjournments. This Court was informed by both the learned counsel that the trial Court is now lying vacant due to transfer of the learned Judge. In the circumstances, I direct the learned District and Sessions Judge, Larkana, to appoint any link Judge to hear the bail application of the accused/applicant and to dispose of the same in view of the above observation and within 15 days, With the above observations, this bail application stands disposed of. N.H.Q./N-556/K Bail application dismissed