1987 P Cr (PLP)

This is a second application for grant of bail by accused petitioner Muzaffar‑ul‑Hasan, the first one having been dismissed on 21‑12‑1985.

2. The accused petitioner Muzaffar‑ul‑Hasan is shown in the conviction slip to have been arrested in this case on 6‑10‑1981. It is clear, therefore, that he has been in detention in the jail in this case for a continuous period of more than one year, the statutory period laid down in third proviso to subsection (1) of section 497, Cr.P.C. entitling a person to grant of bail.

3. The accused, however, is a previously convicted offender because in case F.I.R. No. 47/81 he was convicted and sentenced to five years' R.I and fine of Rs.6,00,000 by the Special Military Court No.61, Lahore., It is true that his said sentence of imprisonment was remitted on 23rd December, 1985 but he continued to remain a previously convicted offender. Apparently, therefore, his case stands covered by the exception to third proviso to subsection (1) of section 497 Cr.P. C. making the third proviso inapplicable to his case and in consequence prohibiting grant of bail to him on the basis of said third proviso. Ostensibly, therefore, he is not entitled to grant of bail on that account.

4. Learned counsel for the accused petitioner has, however, brought to my notice order passed by me on 21‑12‑1985 on Bail Application No. 288 of 1985 of co‑accused Aurangzeb, whereby I granted bail to the said co‑accused in similar circumstances on the said date. It is astonishing that on the same day on almost same facts, two conflicting orders were passed granting bail to co‑accused Aurangzeb and refusing bail to accused petitioner Muzaffar‑ul‑Hasan in the same case. Muzaffar‑ul‑Hasan has, however, stated before me today that Mr. Wasi Zafar, Advocate, who is shown in the order, dated 21‑12‑1985 to have appeared on his behalf was not his counsel and had not appeared on his behalf on that day and that he had while in custody personally argued his bail case on that day. It is, therefore, appears to me that the case of the accused petitioner Muzaffar‑ul‑Hasan for grant of bail which was taken up first was rejected because he (Muzaffar‑ul‑Hasan) had not raised the point which had been agitated by Mr. Wasi War, Advocate, who later appeared in the bail application of co‑accused Aurangzeb. .Learned counsel for the accused petitioner Muzaffar‑ul‑Hasan now prays for grant of bail to accused petitioner Muzaffarul‑Hasan on the principle of consistency in making of orders and announcing of judgments by the Courts of law.

5. I had held in my said order, dated 21‑12‑1985 passed in Bail Application No. 288 of 1985 of co‑accused Aurangzeb that rigour of the exception to third proviso to subsection (1) of section 497 Cr. P. C. which disqualifies a previously convicted person from grant of concession of bail in case of continuous detention for a period of more than one year has got to be relaxed in case of continuous detention of an accused person for a period of 3 years. The period of detention of the accused in this case without his trial having been even commenced is much more than that; it is 5 years.

6. It is true that accused Muzaffar‑ul‑Hasan was at the same time in detention in jail in another case but it is conceded by the learned P.P. appearing on behalf of the State that if an accused is shown to have been arrested on the same day in more than one case and remains in detention during the same period in all the said cases, he would b e entitled to the benefit of his detention from the date of his arrest shown in the relevant challan for the purpose of third proviso to subsection (1) of section 497 Cr.P.C.

7. As already shown the accused has been in detention in this case for a continuous period of five years. This period of detention is too long for accused person in a pending case. It makes a Court; which is the custodian of the liberty of the people as well, shudder to find that an accused has been in detention continuously for a period of five years in a case without his trial having been concluded. Rigour of the exception to third proviso to subsection (1) of section 497 Cr. P.C. which disqualifies a convicted person from getting concession of bail in case of continuous detention for more than one year without his trial having been concluded must, therefore, be relaxed in case of continuous detention of an accused person for a continuous period of 5 years. Though the law‑making authority has provided that benefit of the provision authorising the Court to grant bail to an accused person who has been in detention for a continuous period of more than one year without his trial having been concluded, shall not be given to a previously convicted person, it has not laid down how long such an accused can be allowed to remain detained in the jail without his trial having been concluded on the score of his being a previously convicted offender and how long his liberty would continue to be refused. At any rate the said period cannot be allowed to be extended to a period of more than 5 years.

7. For the foregoing reasons, I grant accused petition Muzaffar‑ul -Hasan bail in the sum of Rs.1, 80, 000 with one surety in the like amount to the satisfaction of Registrar of this Court. S.A./4‑Sp.B Bail granted.