' ALI SAIN DINO METLO, J.---Applicant Atto alias Atta Muhammad Chachar, facing charges of dacoity, murder, attempt to murder and haraabah, in two criminal cases, bearing Special case Nos.310 and 311 of 1997 (F.I.Rs, Nos. 2 and 3 of 1993 of Police Station Sadhuja) before the Special Court for the Suppression of Terrorist Activities, Sukkur, has approached for bail on the ground that in spite of remaining in jail for more than 14 years as under trial prisoner, conclusion of his trial was not within sight. Some of the important eyewitnesses, who belonged to a law-enforcing agency, were not being traced out. As the cases are connected to each other and common ground of inordinate delay in trial is involved in the two bail applications, they are disposed of together by this common order.
2. Briefly, the facts are that on 23-3-1993, at about 9-00 a.m., at the wooden bridge of Sadhuja lake on Misri lake, six personnel of Shahbaz Rangers, namely,
1. Inspector Muhammad Taj,
2. Lance Naik Babu Khan,
3. Lance Naik Amanat Ali,
4. Sepoy Mushtaq Ahmed,
5. Sepoy Muhammad Nawaz and 6.
Sepoy Amir Abdullah Niazi were killed and four others, namely,
1. Lance Naik Muhammad Banaras, 2.
Sepoy Umer Hayat,
3. Sepoy Gul Bahar and Sepoy Muhammad Hashim were wounded by near about 20 unknown dacoits in an ambush, while they were going in a Suzuki Van from their camp of Mian Soomar to Pano Akil. On bearing the gunfires, S.I.P. Ghulam Muhammad Burdi, S.H.O. Of Police Station, Sadhuja situated at the distance of two kilometers, rushed to the place of incident and dispatched the dead-bodies and the injured to Pano Akil Hospital where Muhammad Hashim succumbed to the injuries on the same day. The dacoits had also taken away arms i,e, six G-III rifles and one SMG along with ammunition and two walky-talkies of the deceased. Such F.I.R. Bearing No,2 of 1993 was registered at Police Station, Sadhuja on the same day at 10-00 a.m. By the SHO as complainant on behalf of the State.
3. Police and Rangers went into the forest in search of the dacoits. At about 6-30 p.m. They encountered some 11 dacoits at racetrack of Jam Khizir, situated at the distance of about 7 kilometers from the Police Station. In the exchange of fires, the dacoits killed one sepoy of the Rangers, namely, Basharat, and wounded eight others, namely, (1) Captain Asghar, (2) Naik Jamshed Ali, (3) Lance Naik Atta Muhammad, (4) Sepoy Muhammad Nasir, (5) Sepoy Nazar Ali Shah, (6) Sepoy Muhammad Rafi, (7) Constable Peeral Khan and S.H.O. Ghulam Muhammad Burdi.
The dacoits, taking advantage of darkness and of the forest, escaped unhurt. However, police claimed to have identified six of them to be, (1) Sadoro Chachar, (2) Ghan Chachar, (3) Suhrab Chachar, (4) Mitho Chachar, all armed with K.Ks (5) Aziz Chachar and (6) present applicant Alto Chachar, both armed with rifles.
4. On 17-4-1993, ASIP Nawab Khan of Police Station, Sadhuja arrested Attoo while he was on way to his village. On 29-4-1993, police recovered a K.K from a bush in the forest on his pointation and on the same day he was identified by Naik Muhammad Banaras, Sepoy Muhammad Hayat and Sepoy Gul Bahar before the Assistant Mukhtiarkar and Third Class Magistrate, Pano Akil. On 1-5-1993, he escaped from custody by deceiving police. Assuring police to produce the robbed weapons of rangers, he went into a bush in the forest and disappeared, However, on 20-5-1993, he was arrested from his house after alleged exchange of fires in which nobody was injured and only one single-barrelled shotgun of.12 bore was recovered from him. Since then, he is continuously in custody and the trials have not concluded, as the injured eye-witnesses, belonging to rangers, were not being traced out.
5. The trial court, while admitting five other accused, namely, Mitho, Ghulamoon, Sohrab, Sajan and Habibullah to bail on the ground of delay in trial, refused bail to the present applicant on the ground that he was convicted for an offence punishable under section 13(d) of the Pakistan Arms Ordinance, 1965. The learned Assistant Advocate-General opposed bail additionally on the ground that once he had escaped from the custody of police.
6. In our opinion, these are not valid reasons for refusing bail to the applicant. Indeed, keeping a person in custody without trial for 14 years, which is a lifetime, and that too by a court, which, by law, is enjoined to conclude trial within days, is nothing but abuse of the process of law as well as of court. Section 5-A(1)(2) of the Suppression of Terrorist Activities (Special Courts) Act, 1974, provides that the Special Court shall proceed with the trial from day to day and shall not adjourn a trial for any purpose unless such adjournment in its opinion is necessary in the interest of justice and that no adjournment shall be granted for more than two days.
7. Delay in trial, particularly when it amounts to .Abuse of process of law or of court, has always been recognized as a ground for the grant of bail, before its incorporation in statute in the shape of third and fourth provisos to-subsection (1) of section 497 of the Code of Criminal Procedure, 1898, as well as after their repeal. Its incorporation in the statute had the effect of simply regulating Court's discretion.
8. Access to justice has been recognized as a fundamental rights. In this regard reference may also be made to the cases of Sharaf Faridi v. Federation of Pakistan (PLD 1989 Karachi 404), Government of Balochistan v. Azizullah Memon and others (PLD 1993 SC 341), AlJehad Trust v.
Federation of Pakistan and others (PLD 1996 SC 324), Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445) and Shaikh Liaqat Hussain v. Federation of Pakistan (PLD 1999 SC 504). It is right of every accused to stand trial within a reasonable time. It is proverbial that justice delayed is justice denied. Thus, in our opinion, inordinate and scandalous delay in trial, which in the present ease is 14 years, is not only abuse of the process of law and of court, but violation of fundamental right of access to justice as well . It must be remedied without any further loss of time. The instant remedy in the present case will be to be release the applicant on bail immediately, which cannot be denied to him on the ground that during his captivity he was convicted of an offence punishable with imprisonment or fine under section 13(d) of the Pakistan Arms Ordinance, 1965, or that before his captivity of 14 years he had escaped from custody of police by deceiving them. Even under the statutory provision i,e, the fourth proviso, which excepted certain categories of persons, to the grant of bail on the ground of delay under the third proviso, which was maximally two years, only convicts of offences punishable with death or imprisonment for life were excluded. Similarly, the ground of applicant's deceptive escape from police custody more than 14 years ago, pressed by the learned A.A.-G, to show that he was a dangerous and desperate criminal, will also be not sufficient and valid for refusing him bail, particularly when the manner of his arrest, escape and re-arrest does not depict him to be so and the delay is shocking.
9. Exceptions to the grant of bail for the reasons of accused being previous convict or dangerous, desperate or hardened criminal would not apply to the cases of shocking delay. For this, reference may be made to the cases of Sanam Shah and 10 others v. The State (1986 PCr.LJ 2947 Karachi), Mumtaz and 13 others v. The State (1992 PCr.LJ' 2325 Karachi) and Shammon Jatoi v. The State 1996 PCr.LJ 783). In all these cases delay ranged three to six years. In the present case the delay is of 14 years, which is the most shocking.
10. It was for these reasons, recorded now, that we, by our short order announced and signed on 18- 10-2007, had granted bail to the applicant in the sum of Rs,200,000 with one surety and personal bond in the like amount in each case to the satisfaction of the trial Court. With the administrative approval of the Hon'ble Chief Justice and the law laid down by this court in the case of Ghulam Hussain v. The State (PLD 1981 Karachi 711) and the Hon'hle Supreme Court in the case of the State v.
Asif Adil and others (1997 SCMR 209) the reasons are recorded only by the undersigned, as the other member of the Bench, namely, Chief Justice (as he then was) Sabihuddin Ahmed has ceased to be judge of this court.