2001 PLP 2881 (YLR)

S. A. SARWANA, J.

By this single Order, we intend to dispose of two Bail Applications Bearing Nos. 1384 of 2000 and 1273 of 2000 as both the applications arise out of the same F.1. R. The applicants are involved in Crime F. I. R. No: 247 of 1998 registered on 21-6-1998 under section 365-A/34, P.P.C. at Police Station Clifton, Karachi and are facing trial before the learned Special Judge, S.T.A./1st Additional Sessions Judge Karachi, South in Special Case No. 63 of 1999. The bail has been urged on the ground of statutory delay, hence the narration of the facts will not be necessary. The applicants were admittedly arrested on 9-7-1998, the charge was framed on 12-8-2000 and so for none of the P. Ws. has been examined, resultantly the applicants are in custody for a continuous period exceeding two years, yet conclusion of the trial is not in sight, and the delay in the trial is not attributable to the accused/applicants. According to third proviso to section 497(1), Cr.P.C. if a person accused of an offence punishable with death has been detained for such offence for a continuous period exceeding two years, he shall be released on bail. However, third proviso is controlled and regulated by fourth proviso, according to which the concession of bail cannot be extended to an accused person, who in the opinion of the Court is a hardened, desperate and dangerous criminal or involved in terrorism. Learned trial Court declined the grant of bail to the applicants on this ground, on the basis of the report of S.H.O. concerned mentioned therein that each of the applicants was also involved in one other case. Learned Additional A. G. has conceded to the fact of delay in conclusion of the trial which was not attributable to the accused, yet he objected to the extension of the concession of bail to the applicants and on the strength of pendency of one more case against the applicants attempted to make us believe that the applicants were hardened ' and desperate criminals, notwithstanding the fact that their conduct in jail, as reported by the jail authorities, was satisfactory. The applicants are in internment for more than two years, and the delay in the conclusion of trial was admittedly not occasioned on account of any act or omission on the part of the accused or any person acting on their behalf. Grant of bail under third proviso to section 497(1), Cr.P.C. is a statutory right which is not left to the discretion of the Court but is to be controlled by the relevant provision. The bail under the 3rd proviso (ibid) can be refused to an accused by the Court only on the ground that the delay in the conclusion of the trial had occasioned on account of any act or omission of the accused or any other person acting on his behalf. The above dictum has been laid down by the Honourable Supreme Court in the cases (i) Zahid Hussain Shah v. The State PLD 1995 SC 49, Sayed Abdul Baqi Shah v. The State 1997 SCMR 32, Abdul Rashid v. The State 1998 SCMR

897. So far as the contention of learned Additional A. G. with regard to refusal of bail to applicants on the plea of their being hardened and desperate criminals is concerned, suffice it to say that the applicants were neither previous convict, nor they had a criminal history. In the circumstances, there will be no basis to form an opinion about them to be hardened and desperate criminals, to justify the refusal of bail. Honourable Supreme Court in the case of Moundar and others v. The State PLD 1990 SC 934 was pleased to observe as under:

"The words are in the opinion of the Court'. Since opinion cannot be obviously subjective but must be based upon materials placed before the Court, reasonably supporting the conclusion that the person concerned is a criminal of the classes described." As regards the involvement of the applicants in other pending case is concerned, that cannot be made basis to keep them in continuous and indefinite incarceration as it will not only be unjust but will tantamount to punishing a person before his being convicted. Intention of law is that a criminal case must be expeditiously disposed of without unnecessary delay Honourable Supreme Court in the case of Muhammad Rafiq v. The State 1997 SCMR 412 observed as under:

"Fact that the accused is involved in a number of robbery cases is not sufficient to deprive him of his liberty." Certainly, we are mindful of the established rule of criminal dispensation of justice that primarily the facts and circumstances of each case govern the situation and are, accordingly, to be looked into with reference to a particular principle of law. However, since the above-cited case -law, is fully attracted in the circumstances of the present case, we are inclined to grant bail to the abovenamed applicants. Accordingly each of the applicants namely Muhammad Ashraf alias Achhu and Ghulam Abbas are granted bail in the sum of Rs. 2,00,000 (Rupees Two lacs only) and P.R. Bond in the like amount to the satisfaction of the Nazir of this Court. These are the reasons for the short Order, dated 6-4-2001. H.B.T./G-851K Bail granted.