1. ' The applicant is facing trial for an offence under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, maximum punishment for which has been prescribed as death. The bail application filed by the applicant has been rejected by the trial Court by order 22-7-1986. I have heard Mr. Haji Aliauddin Ansari, learned counsel for the applicant and Mr. A. A. Mohammadally, Assistant Advocate-General for the State.
2. ' Two main contentions have been raised by the learned counsel for the applicant in support of the present bail application. First was the question of age but the material on record at present is not sufficient to extend the concession of bail to the applicant on this account. The other contention on which bail is sought, is that the applicant has remained in continuous custody since 5-7-1984, when he was arrested in this case. According to the learned counsel, this is a case which is eminently fit for extending the benefit of the third proviso to section 497(1), Cr. P. C. The diary-sheet has been filed. The record clearly shows that the applicant has been in custody for over two years.
3. In fact he will be completing two years and three months in custody on 5-10-1986. However, there were two dates of hearing namely 12-1-1986 and 17-3-1986, when P. Ws. Were present but on account of request on behalf of the accused on both these occasions the hearing before the trial Court was adjourned. The question for consideration in this case accordingly is whether on account of the two occasions the applicant had sought adjournment when P. Ws. Were present and the hearing was adjourned, is he still entitled to the concession or hail under the third proviso to section 497(1), Cr. P. C.
4. ' In support of his contention Mr. Haji. Aliaud din Ansari has relied upon a decision of the Supreme Court in the case of Abdullah v. State (1). The entire order of the Supreme Court in the aforesaid reported judgment is reproduced herein below "Dorab Patel, J.-The petitioner is being tried with two other accused for murder in the Sessions Court, Hyderabad, and the learned Advocate-General admitted that the petitioner had been arrested in July, 1976. After he had been in custody as an under-trial prisoner for about three years, he was released on bail by the Sessions Judge on 25-4-1979. However the order of the learned Sessions Judge was set aside by a learned Judge of the Sind High Court on 9-9-1979. Hence this petition for leave.
5. ' M. Hayat Junejo challenged the impugned order on merits. He also submitted that the petitioner was entitled to bail on the ground of delay Alone, and in this connection he further relied on the provision of Code of Criminal Procedure Amending Ordinance 71 of 1979, by which section 497 had been amended.
6. ' We had given notice yesterday to the Advocate-General because we were disturbed by the gross delay in the hearing of the case and after examining the order sheet produced by Mr. Hayat Junejo, the learned Advocate-General admitted that the petitioner had been in custody for much more than two years. He further drew our attention to the fact that the hearing of the case had been delayed on five occasions at the instance of the petitioner. That is true but even if the periods for which the case was adjourned at the petitioner's request are excluded, the petitioner has been behind bars for more than two and a half years. Yet the learned Advocate-General is not able to give any assurance as to when the case would be heard. We are, therefore, satisfied that the petitioner is entitled {{FOOT NOTE}}
(1) 1985 SCM R 1509 {{FOOT NOTE}} to bail, because the delay in the hearing of case, which is not due to his fault, is unconscionable.
7. Accordingly after hearing the learned Advocate-General we have converted the petition into an appeal, set aside the impugned order and release the petitioner on bad. Bail in the sum of Rs, 10,00 with two sureties of the like amount to the satisfaction of the Sessions Court, Hyderabad."
8. ' Mr. A. A. Mohammadally, learned Assistant Advocate-General for the State, has referred to judgment of the Supreme Court in the case of Akhtar Abbas v. State (1). In this reported judgment the concession of the bail was not extended to the accused as on eight occasions adjournments were sought by the defence for one reason or the other. It was observed that in such a case it did not appear to be the intention of the law to calculate the amount of delay caused by the defence and all that was necessary was to see whether the finalization of the trial was in any manner delayed by any act or omission on the part of the accused. Coming to the conclusion that in that case the delay was apparently attributed to the accused, bail was not granted.
9. ' In the instant case it has been pointed out by the learned counsel that on twenty-five dates the case did not proceed on account of reasons which cannot be attributed to the applicant.
10. According to the learned counsel for the applicant, on these occasions the case was adjourned either because the applicant was not produced in Court by the Jail authorities, or P. Ws. We're not present or a request was made on behalf of the State for adjournment. I had asked the learned Asstt. A.-G. Whether he could make a statement about the time, in which the trial against the accused can be finalized so that a time-table could be fixed. Learned Asstt. A.-G. States that he is not able to give any statement as to when the trial can be finalized. Learned counsel for the applicant stated that only one witness has been examined so far in the trial which has lasted nearly two years and three months. There must be several witnesses on behalf of the prosecution.
11. There is no indication from the record that the trial can be finalized in the near future. In the circumstances where the applicant has remained in custody for nearly two years and three months and only on two occasions the case was adjourned at his instance and it is not expected that the trial will be finalized in the next few months, in my view this is a case where the concession of bail be extended to the applicant on account of the delay in the finalization of the trial.
12. ' Criminal Bail Application No, 1387 of 1986 is granted and it is directed that applicant Saleem Ahmad alias Kaka son of Sher Khan be released on bail on his furnishing one surety in the sum of Rs, 25,000 with P. R. Bond in the like amount to the satisfaction of the Nazir of this Court. {{FOOT NOTE}}
(1) PLD 1982 SC 424 {{FOOT NOTE}}