MUHAMMAD ASIF JAN, J. - Ali Hassan alias Mithu was arrested on the 15th of June 1994 and is in jail eversince in pursuance of a case registered against him and others vide FIR No. 18 dated the 8th of February, 1994, at police station Lessar Kalan of District Narowal, under Sections 302/34 read with Section 109 of the Pakistan Penal Code.
2. The trial has commenced but has not yet concluded. Bail is sought on the ground that the petitioner is entitled to the benefit of Clause(b) of 3rd proviso to sub-section (1) of Section 497 of the Code of Criminal Procedure. Reliance is placed by the learned counsel for the petitioner upon the case of Zahid Hussain Shah v. The State reported in PLD 1995 S.C. 49, wherein, the dictum laid down by their Lordships of the Supreme Court is that the benefit of the 3rd Proviso to Section 497 sub-Section 1 of the Code of Criminal Procedure can only be refused by the Court on the ground that the delay in the conclusion of the trial had been occasioned by an act or omission at the accused and in all other cases, the Court must grant bail.
3. Learned State counsel informs me that the challan was submitted on the 19th of August 1994 and the five prosecution witnesses have been examined so far and the trial is in progress but has not yet concluded.
4. Learned counsel for the complainant argues that the petitioner is not entitled to the grant of bail because the principle role in the commission of the murder in question is assigned to him, the trial has commenced and finally the delay in the conclusion of the trial is due to various adjournments sought on behalf of the accused persons. Learned counsel for the complainant places reliance upon the following cases:-
1. Farid Bakhsh v. Allah Bakhsh (PLJ 1996 Criminal Cases (Lahore) 1140),
2. Javed Akhtar v. State, (PLJ 1996 Karachi 1562),
3. Muhammad Sadiq v. State (1980 S.C.M.R. 203)
4. Allah Ditta v. State (1990 S.C.M.R. 307).
In the case of Farid Bakhsh v. Allah Bakhsh, reported in PLJ 1996 Criminal Cases (Lahore) 1140, my learned brother Muhammad Naseem, J. Was pleased to cancel bail which had been granted on statutory ground on account of continuous detention for over a period of two years from the date of arrest because the case had not been processed with all seriousness by the Presiding Officer and also because many adjournments had been sought to engage a defence counsel and further because some dates had been sought by the learned defence counsel.
5. With utmost respect for my learned brother, I am afraid that I cannot subscribe to his Lordship's view. In my opinion, when the Statute provides a certain benefit to a citizen it cannot be with-held because of the inadequacy of a Presiding Officer who may not have processed the matter with all seriousness, the fault may lie with the Presiding Officer and not the citizen.
6. The only rider clause is mentioned in the proviso which follows Clause (b) to the 3rd Proviso which is to the following effect: - "Provided further that the provisions of the third proviso to this sub-section shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal or involved in terrorism".
It seems that the real reason which weighed with my learned brother Muhammad Naseem J., was to the effect that the accused who had taken the law in his own hands in the precincts of the Sessions Court was considered to be a desperate and dangerous criminal.
7. In the next case cited by the learned counsel for the complainant (PLJ 1996 Criminal Cases (Karachi) 1562), it was held that right from the date of the submission of the challan the accused had been moving applications for adjournments and false and frivolous applications against he Presiding Officer for getting the case transferred which resulted in delay of conclusion of the trial and, therefore, it was held that the accused was not entitled to be released on bail.
In the case in hand, the petitioner is languishing in jail for more than two years and he is not responsible for this inordinate delay in the conclusion of the trial.
In the case of Muhammad Sadiq v. The State reported in 1980 S.C.M.R. 203, it was held by their Lordships of the Supreme Court that when the trial was to commence shortly it was not fair to go into the merits of the case. This case was decided by their Lordships of the Supreme Court on the 14th of May 1979, which is much before the amendment to Section 497 Cr.P.C., whereby, the third Proviso was added by virtue of Act XIX of 1994 dated the 14th of November 1994.
In the case of Allah Ditta v. Th State, reported in 1990 S.C.M.R. 307, their Lordships of the Supreme Court were pleased to observe that when the case had already been fixed for evidence by the trial Court, no ground was made out for the grant of bail. This case was decided by their Lordships of the Supreme Court on the 25th of September 1989.
8. The Law as it stands now clearly creates a Statutory benefit for all citizens who are accused of having committed an offence, which cannot be with-held unless it is shown that a person is disentitled to the benefit by virtue of the law itself.
9. To my mind, the raison do', etre (reason for existence of) for the amendment brought by the amending Act of 1994 is in line with the fundamental right provided in the Constitution of the Islamic Republic of Pakistan in Article 9, which provides that at no person shall be deprived of life or liberty, save in accordance with law. Whenever a citizen is accused of an offence, it is necessary in a democratic polity that such a person should be afforded an opportunity of a fair trial. The concept of a fair trial necessarily includes a trial without inordinate delay. It is of the utmost importance that a person xxx either be convicted for the offence which he has committed or acquitted if he has not. Either way, "justice delayed is justice denied". This is established principle of law which has now been brought on to the Statute Book by way of the Amending Act, 1994.
Resultantly, the petitioner is granted bail provided he furnishes bail bond in the sum of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of the trial Court.