1997 P Cr (PLP)

S. 497(1), third proviso

Penal Code (XLV of 1860), S.364/302/201/34-- Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17/ 18

Bail on the ground of statutory delay

Delay in the disposal of the case had occurred on account of multifarious reasons which could not be said to be unprecedented

Case, however, now stood fixed before the Trial Court which had remarked that the same would be disposed of within the current month

Disposal of the case being within sight, accused was not entitled to bail at such a stage

Bail was declined to accused in circumstances. PLD 1995 SC 49 ref. Sh. Zamir Hussain for Petitioner. Muhammad Nazeer Mian for the State. The petitioner alongwith two co-accused namely Gohar Sultan and Shajar-ul-Haq were involved in a case under section 364/302/201/34, P.P.C. read with section 17/18 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 registered on 18-10-1994 vide F.I.R. No.497 lodged with the Police Station Wall Cantt. District Rawalpindi. The allegation against the petitioner and his co-accused was that they murdered the deceased Muhammad Khurshid. The co-accused of the petitioner absconded, whereas the petitioner was arrested on 19-10-1994.

2. That bail is pressed only on statutory ground that since two, years have elapsed after the arrest of the petitioner, therefore, he is entitled to be released on bail in view of the provisions contained in the 3rd proviso to section 497, Cr.P.C. In this respect, it is contended that the petitioner is continuously behind the bars since the date of his arrest i.e.; 19-10-1994 but the trial in the case has not yet concluded; and that the trial was not delayed in any manner by any act or omission on the part of the petitioner/accused or any other person acting on his behalf. Reliance was placed on PLD 1995 SC 49 to support the proposition.

3. It is true that the provision contained in the 3rd proviso to section 497, Cr.P.C. should be strictly construed and the bail should normally be granted to an accused/petitioner if he is in continuous detention of two years without the delay being attributed to him. In the instant case, the perusal of the copies of the order-sheet will show that the case was taken cognizance for the first time on 11-1-1996 and the witnesses in the case were summoned. However, later on, the case was adjourned on many dates because of the transfer of the Presiding Officer without substitute. Again it was fixed before the Presiding Officer but incidentally, he too was transferred without substitute. It was thereafter that the case was made over to the present incumbent who has clearly expressed in the order that the delay of trial occurred on account of multifarious reasons such as absconcion of the co-accused; their subsequent arrest and submission of supplementary ch411an to be tried alongwith the present petitioner; that the Presiding Officer was transferred without substitute; that sometime was also consumed as the Presiding Officer remained busy in election duty; and that now the matter has already been fixed and according to the learned trial Court,, it is likely to be disposed of before the month of March, 1997. 4 In view of the above situation, it cannot be said that delay in disposal of the case was unprecedented which now stands fixed before the trial Court which has remarked that the same shall be disposed of within this month. It follows that the disposal of the case is within sight and under such circumstances, the petitioner would not be entitled to bail at this stage. The petition is accordingly dismissed. N.H.Q./M-314/L Bail refused: