1987 P Cr (PLP)

It was argued with considerable vehemence that the present petitioners were arrested on 21‑2‑1984 and are in continuous detention since then. The period for which they remained in detention is admittedly more than two years, hence in view of the proviso referred to hereinabove, the petitioners are entitled to be released on bail. Reliance was placed on the following authorities:

1. The case of Iftikhar Muhammad v. State as reported in PCr.LJ 1983 Lah. page 1512, it was observed that:‑ "Speedy trial is well‑recognized as a right of an accused person and if there is delay especially a statutory delay, then an accused person irrespective of the fact whether he was an absconder or he is required in other cases would be justified in asking for trial."

2. The case of Nazir Hussain v. Ziaul Haq and others as reported in 1983 S C M R page 72, in which inter alia, it was observed that:‑ "Grant of bail on expiry of certain specified period and under certain conditions made a matter of right and not only discretion. It was further observed that word "shall" in 3rd proviso does not mean "may" and to be read in the orderly sense."

3. The case of Shouki alias Shaukat and others v. State and others as reported in SCMR 1984 page

613. In this matter it was observed by the Honourable Judges of the Supreme Court that:‑ "That an act or omission of one of co‑accused who were being jointly tried would not deprive the others of benefit of bail although individually such other co‑accused was not himself responsible for delay in trial. It was observed that Court must consider the case of each accused individually and mere fact that the counsel representing the accused was busy with other professional work and was unable to attend the trial of the accused will not ipso facto be construed justification for delaying trial." On the other hand the learned Advocate‑General Baluchistan relied firstly on the authority as referred to, by the petitioners' counsel i.e. SCMR 1983 page 72, and also on the following authorities:‑ 1. "SCMR 1982 page 257, the case of Muhammad Sarwar v. State in which it was observed inter alia that: "Delay in commencing of trial not per se sufficient to warrant inferences by the Supreme Court."

2. PLD 1984 Supreme Court page

1. The case of Muhammad Yaqoob alias Qoobi v. State in which inter alia it was observed that:‑ "The case was fixed for recording evidence on 10 different dates but adjourned because either one or other accused absented himself or was not brought to Court by jail authorities‑‑‑‑‑‑Some part of delay caused due to absence of accused. In such circumstances it was observed that refusal to grant bail to accused, on account of delay in trial, by High Court was justified." In order to appreciate aforesaid contentions it may be observed that the learned Additional Sessions Judge‑I, Quetta has not rejected the bail on the ground of delay or otherwise. He has rather disposed of the bail applications having resort to the 4th proviso to section 497(1) Cr.P.C. which reads as under:‑ "Provided further that the provisions of the 3rd proviso to this subsection shall not apply to a previously convicted offender or to a person who in the opinion of the Court, is a hardened desperate or dangerous criminal." Thus as far as the question of delay is concerned there was no observation made by the Court of Session and rather relying on the fourth proviso, it was observed that since the petitioners were hardened and habitual offenders, therefore, their bail application were rejected. In such view of the matter, it was argued by the counsel for the petitioners that in order to come to the conclusion that an accused person is hardened and habitual or desperate offender, the Court should act on the basis of some evidence or material. To conclude that a person is a hardened and habitual or desperate offender, the record must be seen and discretion cannot be exercised on mere hypothetical basis. It was further argued that the trial Court referred to the alleged confessional statements of the accused persons in order to conclude that they were hardened and habitual criminals. It was further contended that the basis of proving an offender as hardened habitual or desperate criminal may be some independent material like previous conviction, the number of cases of henious nature pending or some police record etc. In his argument the learned Advocate‑General submitted that the accused persons are involved in two murder cases, therefore prima facie, it can be gathered they are habitual hardened and desperate criminals. It is to be observed that mere fact that there are pending cases against the accused persons who are not otherwise previous convicts and particularly in the circumstances of the present case, where the accused persons have been granted bail in other pending cases, it will be too broad an interpretation to conclude that the petitioners are habitual offenders in absence of any other material or police record. Particularly so when, as observed in this case by the Additional Sessions Judge‑I, Quetta, such opinion is based on Confessional Statement alone, which is still subjudice and thus yet to be scrutinized by the trial Court. However, each case has to be decided on its merits and that the cases should be dealt with individually of each offender. It may be further observed that the opinion of the Court should be based on some tangible and independent material in order to come to a conclusion that the offender is hardened, habitual or desperate criminal. In such circumstances, I find quite some force in the arguments of the counsel for the petitioners that mere confessional statement, the legality or otherwise of which is still under consideration by the trial Court cannot be made basis to conclude that the petitioners are hardened, habitual or desperate criminals. I am therefore, inclined to hold that in view of third proviso to section 497(1) Cr.P.C. the accused persons are entitled to be released on bail. The observation by the Additional Sessions Judge‑I, Quetta that they are hardened and habitual criminals, is not supported by any material except a retracted confessional statement which in my opinion in absence of any independent circumstances, cannot alone form such basis. I, therefore, allow this petition and order that the petitioners shall be released on bail if they furnish security in the sum of Rs.50,000 each with two sureties and P.R. of like amount to the satisfaction of the Additional Sessions Judge‑I Quetta. M.Y.H./277/Q Bail granted.