This is a bail application filed by eleven accused, who alongwith other co-accused, are involved in a case of murder, F.I.R. In respect of which incident was filed nearly five years ago to be precise, on 28-10-1981. Apparently, after investigation, the case was sent for trial by a Special Military Court. It also appears that the accused appeared before a Special Military Court at Sukkur but for reasons not known or at least not apparent on record, the trial was not concluded till Martial Law was lifted from the country, on 31-12-1985. The learned Addl. A.-G. Is not in a position to make a .Statement as to whether any progress at al[ was made in the case before the Special Military Court but Mr. N.K.
Jatoi, learned counsel for the applicants, on instructions, makes a statement that no proceedings at all took place bef6re the Special Military Court except that the accused were produced before the Special Military Court from time to time. According to the learned counsel for the applicants, his instructions are that even the charge was not framed by the Special Military Court against the applicants. According to Martial Law Administration, the avowed purpose of establishment of Martial Law Courts in the territory where Martial Law is imposed is to provide a machinery for deciding expeditiously criminal cases involving serious crimes as the ordinary civil Courts tend to take very long to decide cases on account of time consuming legal procedures and other factors which do not hamper the working of the military Courts. The performance of the Special Military Court in this case, which was perhaps seized only with this case, is, however, a sad reflection on the working, of the ad hoc machinery which substituted the ordinary Civil Courts in certain jurisdictions.
To continue with the narration of necessary facts, after the Martial Law was lifted in the country, the case was sent for trial by the civil Court and it came to the file of the learned Sessions Judge, Khairpur. This was sometimes in February, 1986. An application for bail was moved before the trial Court but by order, dated 26-6-1986, the bail application was rejected by the learned Sessions Judge, Khairpur. Hence, the present bail application. I have heard Mr. N.K. Jatoi, learned counsel for the applicants, and Mr. M.I. Memon, Additional Advocate-General for the State.
2. The main ground for bail urged by the learned counsel for the applicants is delay in the finalization of the trial. On the basis of police papers available with the learned Additional Advocate-General, it was pointed out by learned counsel that all the applicants except applicant No. 10 Sahib Bapar, had been arrested prior to 3-1-1982 and since then they are in custody, and applicant No. 10, Sahib Bapar, is in custody since 7-4-1983. These factual assertions could not be denied by the learned Additional A.-G. According to the learned counsel for the applicants, nearly five years have passed and. Even the Charge has not been framed against the applicants. As observed earlier, according to the applicants, no proceedings took place before the Special Military Court which was seized of this case for nearly four years. Then the Court file of this case was called for from the Court of learned Sessions Judge, Hyderabad, to whom the case has been transferred last month, and the diary-sheet shows that no progress at all has been made before the Sessions Court in the trial of the applicants. The learned Addl. A.-G. Could not controvert the assertions made on behalf of the applicants that although the case has been fixed on various dates before the trial Court at Khairpur since February, 1986 but not even on one date all the accused were produced by the police before the trial Court. The reasons have been given for non-production of the accused, which are apparently law and order situation or confinement of some accused at Karachi. The bail application has been rejected by the trial Court on the ground that the trial before him has recently started and the applicants are involved in very heinous offence. It may be observed here that a fourth proviso had been added to section 497(1), Cr.P.C. Which is to the effect that the concession of the third proviso (grant of bail on the ground of non-finalisation of the trial for one year or two years as the case may be) is not to be extended to a previously convicted offender or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal.
3. Learned Addl. A.-G. Opposes the present bail application on two grounds. It was first contended that the fourth proviso to section 497(1) .Cr.P.C. Is attracted in the instant case for as many as ten people had died in the incident in which the applicants are involved. The second contention of the learned Addl. A.-G. Opposing the bail application is that the delay that has taken place was before the Special. Military Court and not before the learned Sessions Judge, who only received the case in February, 1,986. It was submitted that as only about 7 months had expired since the base came on the file of the learned Sessions Judge, the applicants cannot take any benefit from the third proviso to section 497(1), Cr.P.C. Which requires that the trial should have been pending for two years in a case punishable with death.
4. There are two recent reported decisions on the fourth proviso to section 497(1), Cr.P.C. First is the case of Rahim Bux v. State PLD 1986 Kar. 224, in which it has been held by a learned Single Judge of this Court that bail cannot be refused to a person in view of the fourth proviso unless the accused is already adjudged guilty of some offence previously. On the other hand, there is another judgment of another learned Single Judge of this Court in the case of Muhammad Hanif v. State PLD 1986 Kar. 437, where it has been held that the opinion whether the accused is desperate or dangerous criminal can be formed by the Court, even if there are no pending cases against the accused, on the basil of the material in the very case available with the prosecution to connect the accused with the commission of the crime.
5. Contention of the learned Additional Advocate-General that for seeking concession of bail under the third proviso to section 497(1), Cr.P.C., an under trial prisoner cannot claim benefit of the period during which he was in custody while the case against him was pending before a Martial Law Court, cannot be accepted. The-conditions to be fulfilled by an under trial prisoner under the third proviso to section 497(1) Cr.P.C. Are that he must have been in detention for the specified period pending his trial and that the delay in the finalisation of the trial was not attributable to him. If these conditions are fulfilled and his case Is not covered by the fourth proviso to section 497(1), Cr.P.C., the accused makes out a case for grant of bail on account of delay. Detention of an under-trial prisoner for one or two years (as the case may be) is relatable to the case pending. Him. In the instant case, the proceedings commenced against the applicants on the F.I.R. Being registered against them; on 28-10-1981. Thereafter they were taken into custody. The mere fact that the case against the applicants remained pending before a Special Military Court does not mean that they were in detention on account of some other case. They remained in detention in the very case which was later on transferred to the learned Sessions ' Judge, Khairpur and now to learned Sessions Judge, Hyderabad. For purposes of third proviso to section 497(1); Cr.P.C., the applicants can take benefit of the period they remained in custody while the case was pending before the Special Military Court.
6. Reverting to the first contention of Mr. M.I. Memon, learned Additional Advocate-General, it may be observed that in case the view taken in the case of Rahim Bux. v. State PLD 1986 Kar. 224 is followed then the applicants cannot be denied bail on the ground that the offence in question shows that they are hardened, desperate or dangerous criminals. On the other hand, even if the view expressed in the case of Muhammad Hanif v. The State PLD 1986 Kar. 437 lays down the correct law, in my view, no accused can be detained in custody as an under-trial prisoner for as long as p period of four or five years without even the trial commencing against him. If this were permitted by law, an accused could be kept in custody for an indefinite period and this cannot be the intention of the fourth proviso to section 497(1), Cr.P.C. No doubt the fourth proviso to section 497(1), Cr.P.C., provides that an accused cannot be released on bail even on the expiry of two years of his trial commencing in case the trial is not finalised if he is a hardened or desperate criminal but from this it does not follow that law permits that the, accused can be kept in custody as an under-trial prisoner for an indefinite period. The applicants have remained in custody for very long periods extending to nearly 3-- to five years. The record of the trial Court, namely. Sessions Judge, Khairpur, has been perused. The trial has not even commenced. Even charge has not been framed.
Then there are over 40 prosecution witnesses. Some co-accused are absconding. It is apparent that there is no likelihood of the trial against the applicants concluding in the near future. It may take some years before the trial against the applicants is concluded if the proceedings continue in the same fashion as they have continued so far in the Court of the learned Sessions Judge, Khairpur. It has been pointed out by the learned Addl. A.-G., that the case has now been transferred to the learned Sessions Judge, Hyderabad but this by itself does not mean that the trial will be finalised in the next few months. It may again be emphasised that the case is of the year 1981 and the trial is yet to commence.
7. On the ground of inordinate delay of nearly 5 years in the finalisation of the trial against the applicants, rather commencement of the trial, in my view, a case for bail has been made out by the applicants. Criminal Bail Application No. 1010 of 1986 is granted and it is directed that the following accused be released on bail on each of them furnishing two sureties in the sum of Rs.50,000 each with P.R. Bond in the like amount to the satisfaction of the learned Sessions Judge, Hyderabad:--
(1) Sanam Shah son of Shamsuddin Shah;
(2) Shah Zaman Shah son of Shamsuddin Shah;
(3) Aziz Mirbahar son of Soomar;
(4) Aziz Sadhayo son of Nizamuddin Sadayo;
(5) Akil Dharejo son of Abdul Ghafoor;
(6) Saddar Chandio;
(7) Kabool Kharos;.
(8) Kaloo Punjabi son of Karim Bux Mochi;
(9) Ali Hasan Bapar son of Kajlo Bapar;
(10) Sahib Bapar; and
(11) Rahmatullah Detho son of Jiand Detho.
File of the trial Court summoned by this Court may be sent forthwith to the learned Sessions Judge, Hyderabad, so that it is received by him by 18-9-1986 when this case is fixed for hearing before him.