2002 PLP 390 (MLD)

Muhammad Ayaz Soomro for Applicants. Mushtaque Ahmed Kourejo for the State. This case pertains to an incident occurred on 23‑6‑1999 were after a F.I.R. No.38 of 1999 was registered at Qubo Saeed Khan Police Station. It is stated that according to the complainant, he alongwith his relatives, left for ploughing the land when the accused and his group of people who were armed with lathies and gun confronted them. The dispute over the land resulted in a altercation through words which was followed by threats and ultimately a free for all occurred. In this melee certain people lost the lives, while other were injured. The accused were arrested .and case was registered against them. They were arrested on 15‑7‑1999, since that day they are behind the bars and the present bail application has been moved on their behalf on the grounds of statutory delay. It is the contention of the counsel for the applicants that the case has not proceeded for the last two years due to no fault of the accused and hence they were entitled to the concession of bail. In support of the contention, the learned counsel has relied on the case of Shoukat Ali v. Ghulam Abbas (1998 SCMR 228). In this case the Honourable Supreme Court had granted bail on the grounds of statutory delay even some adjournments were sought by the accused. In the case of Muhammad Yousif v. State (2000 SCMR 79), bail was granted on the ground of statutory delay. In the case of Mashooq v. State (2000 PCr.LJ 874), the bail was granted on the grounds of statutory delay in spite of the fact that the case involved a murder of two persons. In the case of Moinuddin v. State (2000 PCr.LJ 904), once again bail was granted under the third proviso to section 497, Cr.P.C. In the case of Zahid Hussain Shah v. State (1995 SCMR 49) the accused was enlarged on bail. The Honourable Supreme Court while granting the bail observed that thus was a statutory right which cannot be denied under the discretionary power of the Court. The right of the accused to get bail was controlled by the provision of section 497, Cr.P.C. According to the learned Division Bench, it can only be refused if the delay in the conclusion p of the trial had occasioned on account of any act or omission of the accused or any person acting on his behalf. The Court also observed that it can also be refused if the case falls within the fourth proviso to section 497, Cr.P.C. beyond this in all other cases Court must grant bail. The learned counsel appearing on behalf of the State has relied on the case of Essa Khan v. State‑ (2001 MLD 971). In this case tie Division Bench of this Court refused bail on the grounds of statutory delay as they were of the opinion that there was enough evidence can record to prove that the case was adjourned on various dates either at the request of accused or his counsel. Delay was attributed to the accused. In the oase of Abdur Rashid v. State (1998 SCMR 897), bail was refused as the counsel for the accused obtained seven adjournments. In the case of Sahib Khatoon v. Bukhshal (2001 MLD 229) a Single Judge of this Court refused bail that the defence was responsible for the delay. From the above cited case laws it is very clear that two main points have emerged. (i) That the delay should not be attributed to the accused. There should not be an intention to delay the matter. (ii) That bail can be refused if it is shown that the accused was a dangerous, desperate and hardened criminal. In order to establish the fact whether he was a hardened criminal it would not be enough to look into the incident that occurred or as to how gruesome or heinous the incident was but it would be necessary to show that the accused was involved in other crimes which would, R therefore, prima facie establish him to be a person who was regularly involved in crime. In the present case the fight was over land. From tine immemorial man has fought over women, money and land. It is that sometimes several people are killed purely on account of a small piece of land which necessitate two sides to fight against each other. Nobody was a hardened, desperate criminal. All were peasants who fought without thinking. They are now facing murder charge. They have been behind bars for two years and are not hardened criminals. At this stage learned counsel does not press the bail application of the applicant/accused Manzoor for the reason that he has been arrested on 9‑8‑2'001, which is dismissed as withdrawn. The applicant is at liberty to file fresh bail application of the applicant Manzoor before the trial Court on merits. Under the circumstances and bowing to the observations of the Honourable Supreme Court bail is granted in the sum of Rs. One hundred thousand each and P. R. Bond in the like amount to the satisfaction of trial Court. N.H.Q./A‑273/K???????????????????????????????????????????????????????????????????????????????? Order accordingly.