1999 P Cr (PLP)

S. 497(1), third proviso

Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4

Bail, grant of

Statutory delay in conclusion of trial-- Mandatory for the Court to grant bail

Word "shall" used in third proviso to S.497(l), Cr.P.C. made it obligatory upon the Court to grant bail where statutory period was over and accused was not responsible for contributing any delay

Accused was entitled to bail as a matter of right and not as a matter of grace

Bail was granted to accused in circumstances. Haji Abdul Qayoom v. The State PLD 1991 FSC 74; Nazir Hussain v. Ziaul Haq and others 1983 SCMR 72; Miskeen Shah v. The State 1990 PCr.LJ 60 and Amir v. The State 1991 PCr.LJ 534 ref. Shahadat Awan for Applicant. S.Z.A. Qureshi for A.-G: for the State. Applicant Muhammad Yousuf, who is detained in Crime No.97 of 1990, Baghdadi Police Station under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979, applied for bail before learned Sessions Judge (South) Karachi, mainly on the ground of statutory delay, but his prayer was refused by the learned Sessions Judge as in his opinion there was likelihood of the absconcion of the applicant because other persons who were arrested alongwith him and allowed bail on the ground of statutory delay have already jumped bail. While dismissing the application the learned Sessions Judge had followed the rule laid down by the Federal Shariat Court in the case of Haji Abdul Qayoom v. The State reported in PLD 1991 FSC 74, wherein it has been observed that the question of likelihood of abscondence of the accused is a relevant factor while granting bail to an accused person involved in such cases of narcotics under third proviso to subsection (1) of section 497, Cr.P.C.

2. I have heard Mr. Shahadat Awan, learned counsel for applicant and Mr. S.Z.A. Qureshi, learned counsel for State. The latter has opposed the bail application. Mr. Shahadat Awan, learned counsel for applicant has placed reliance upon the case of Nazir Hussain v Ziaul Haq and others, reported in 1983 SCMR 72, and has endeavoured to show that the word "shall" used in third proviso to subsection (1) of section 497, Cr.P.C. makes it obligatory upon the Court to grant bail if the statutory period is over and the applicant/accused is not responsible for contributing any delay. The rule laid down by the Supreme Court in the above-cited judgment is self-explanatory and makes it clear that the word "shall" used in third proviso to subsection (1) of section 497, Cr.P.C. does not mean "may" and is to be read in the ordinary sense. In other words it was made clear by the Supreme Court that once the requirements laid down by the Legislature are fulfilled by the applicant/accused the bail cannot be refused to applicant on any other ground. (Now except under fourth proviso). The case of Miskeen Shah v. The State reported in 1990 PCr.LJ 60, is also clear on the subject, wherein this Court after following the view taken by the Honourable Supreme Court in the above-cited judgment observed as follows:-- "The only fact that he was found in possession of huge quantity of powder of heroin should not come in his way when otherwise he fulfils the requirements prescribed by law. Were the Legislature in its wisdom thought it proper to lay down certain conditions wherein the discretion may be exercised and those conditions are satisfied, it goes without saying that the Courts have to exercise their discretion in accordance with the will of Legislature. "

3. The bail was also declined to applicant on- the ground that he was responsible for seeking adjournments on 19-3-1991, 21-4-1991 and 15-5-1991. Mr. Shahadat Awan has made statement at the bar that on two dates of hearing the prosecution witnesses were not present and only on, one date of hearing the applicant sought adjournment and that too on the ground of the sickness of his Advocate. This question was also considered by this Court in the case of Amir v. The State, reported in 1991 PCr.LJ 534, wherein it was made clear that the accused cannot be penalised due to illness of his counsel or his preoccupation in superior Courts.

4. Having regard to the above legal position, I am of the view that the applicant who is in continuous detention since 25-3-1990, is entitled to the grant of bail as a matter of right and not as a matter of grace. Since the learned Sessions Judge has apprehension of the absconcion of the present applicant like two other persons detained alongwith the accused, the course open to him was to have demanded heavy surety. Accordingly, bail is allowed to applicant in the sum of Rs. 4,00,000 (Rupees four lacs) with P.R. Bond in the like amount to the satisfaction of the trial Court. Q.M.H./M.A.K./M-313/K Bail granted.