2003 P Cr (PLP)

Zafar Abbas Mirza for the State. Imdad Hussain Adil for the Complainant. Date of hearing: 9th June, 2003. Petitioner Raz Muhammad alias Ram Janey and co-accused namely Bahar Gul, Lal Muhammad and Shah Muhammad stand charged for committing the murder of Khushrang son of Mian Gul and causing injuries to Nafar Gul brother of deceased vide F.I.R. No.341, dated 3-5-1995 under sections 302/324/34, P.P.C. registered in Police Station Bhana Mari, Peshawar.

2. The petitioner after remaining in continuous detention of two years in jail applied for his bail before the Additional Sessions Judge-Judge Special Court, Peshawar by invoking the provision of 3rd proviso to section 497, Cr.P.C., however, his prayer for bail has not prevailed with the learned lower forum, for, it was observed that proviso III to section 497, Cr.P.C. stood repealed on 10-10-2001.

3. Mr. Abdul Fayyaz Khan, learned counsel for the petitioner seeking bail on the sole ground of statutory delay in conclusion of trial under 3rd proviso to section 497, Cr.P.C. urged that notwithstanding the fact that the 3rd proviso has been deleted through Amendment Ordinance (LIV of 2001) on 10-10-2001, the petitioner being arrested on 3-4-2001 and amendment being not operative retrospectively, the benefit of the said provision, which was in the field at the time of his arrest, would be available to the petitioner. In support of his submission, reliance was placed on the case of Asif Ali Zardari v. The State 1993 PCr.LJ 781, Naseer Khan v. Mairaj Nabi Criminal Miscellaneous No. 1135 of 2001, decided on 7-12-2001. Secondly, release of the petitioner on bail is also sought on the rule of consistency, for, co-accused, named above, have been extended the concession of bail by this Court in case Bahar Gul and another v. The State Criminal Miscellaneous No. 134 of 2002, decided on 3-6-2002.

4. The plea of bail of the petitioner was strenuously opposed by the learned counsel for the State assisted by the learned counsel for the complainant.

5. Arguments of the learned counsel for the parties considered and record perused.

6. Third proviso to section 497(1), Cr.P.C. provides that a right to apply for bail accrues to an accused, who has been charged for an offence, punishable with death, has been detained for a continuous period exceeding two years and whose trial for such offence has not concluded. I may out-rightly observe that both the contentions of the learned counsel for the petitioner are misconceived and ill-founded. After remaining absconder for a period of six years, the petitioner was arrested on 3-4-2001. No doubt, at the time of arrest, the 3rd proviso was in existence but by the time, he matured his continuous detention of two years in jail, and 3rd proviso stood omitted through Amendment Ordinance (LIV of 2001) on 10-10-2001. The authorities relied upon by the learned counsel for the petitioner are not attracted to the present case. In all the above authorities, the accused had remained in continuous detention exceeding two years before the deletion of 3rd proviso to section 497(1), Cr.P.C. In the case of Asif Ali Zardari v. State 1993 PCr.LJ 781, Asif Ali Zardari and another, during the course of their trial under sections 13(f) and 16(b) of Pakistan Arms Ordinance, 1965 and section 365-A, 395 and 109, P.P.C. read with section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 before the learned Special Court for the Suppression of Terrorist Activities, Karachi, after remaining in continuous detention of one year, the requisite period, moved bail application by invoking the 3rd proviso to section 497(1), Cr.P.C. The bail was allowed to the applicants, for it was held that right to bail had already been accrued at the time when the amendment was made in the law. Similar was the case of Naseer Khan v. Mairaj Nabi Criminal Miscellaneous No. 1135 of 2001. The accused was arrested on 21-6-1999. They were allowed bail on 7-12-2001 meaning thereby that accused had already completed his continuous detention of two years before the amendment on 10-10-2001. Similarly, in Bahar Gul and another v. The State Criminal Miscellaneous No. 134 of 2002, the co- accused arrested on 17-5-1999 had remained in continuous custody of two years when the amendment was made in section 497, Cr.P.C. The rule or consistency too is not attracted in the circumstances of the present case. In the instant case, the situation is absolutely different. The petitioner was arrested on 3-4-2001 and by the time, he matured his continuous detention of two years in jail, the benefit of 3rd proviso to section 497(1) was not available to him since it was deleted:

7. In view of above, the petition is hereby dismissed. H.B.T./865/P Bail application dismissed.