1996 P Cr (PLP)

Mahmood Ahmad for Petitioners. Khurshid Iqbal for the State. Pervaiz Inayat Malik for the Complainant. Muhammad Sadiq and Abid Hussain sons of Fazal Hussain and Fateh Alain son of Muhammad Alain alongwith three others are being tried for the murder of Ghazanfar Ali and for causing injuries to Shafqat and Azmat with fire-arm.

2. They seek bail on the statutory ground. According to them they were arrested on 14-6-1993 and are behind the bars ever since then but their trial has not concluded so far. Learned counsel appearing on their behalf has cited a number of precedents in support of his plea for the grant of bail.

3. Learned counsel for the State and the complainant have strenuously opposed the application. According to them the petitioners are not entitled to the grant of bail as they themselves were responsible for the delay. In this context they have referred to the order passed by the learned trial Court refusing bail to the petitioners on the statutory ground. They have tried to demonstrate that the delay took place on account of conduct of the petitioners or their co-accused.

4. Learned counsel for the petitioners has denied that the petitioners were responsible for the delay. According to him the delay had occasioned due to adjournments sought by co-accused of the petitioners. As regards the grant of bail he maintains that if the trial does not come to an end within the given period the accused are entitled to grant of bail as a matter of right.

5. Act or omission of co-accused, when being jointly tried, cannot deprive others of the benefit of bail under section 497(1), proviso 3rd, Cr.P.C. The Court is required to examine case of each accused individually. Even the adjournment sought by the defence counsel representing the accused on account of his engagement in the professional work cannot be made a ground to deny bail to him on the statutory ground. 5-A. The requirement of holding day-today trial of murder cases has, time and again, been impressed upon by this Court. However, if for any genuine reason counsel for the accused is unable to appear on a particular date the case may be adjourned to the next day or two or three days, thereafter, but if adjournment is granted for a longer period without there being any such request from the defence counsel the delay thus taking place in the conclusion of trial cannot be considered against the accused.

6. The right of the accused to be released on bail under the 3rd proviso to section 497(1), Cr.P.C. is a statutory right which cannot be denied to him under the discretionary powers of the Court. And the use of word "shall" therein has to be read in its ordinary sense.

7. Learned counsel for the complainant and the State have not been able to show that delay in the conclusion of the trial was caused by the conduct of the present petitioners. As already stated above they cannot be held responsible for the conduct of their co-accused, who are stated to be on bail, nor for the adjournments sought by their counsel on account of his professional engagements.

8. In the circumstances narrated above the petitioners have been able to make out a case for the grant of bail on the statutory ground and I order accordingly. They shall be released on bail pending trial on furnishing surety bonds in the sum of Rs.2,00,000 (Rupees two lacs) with two sureties each in the like amount to the satisfaction of the learned trial Court. The trial Court is directed to expedite the trial by avoiding unnecessary adjournments. N.H.Q./M-81/L Bail allowed.