' The petitioner through this petition seeks bail after arrest under the provisions of 3rd proviso to section 497, Cr.P.C. In a case F.I.R. No,186 of 1993 under section 302/34, P.P.C. Registered with Police Station Sadar, Gujranwala.
2. Learned counsel for the petitioner contended that the petitioner was arrested on 28-3-1993; he was sent to judicial lock-up on 29-3-1993 and is waiting for the trial since then and that the delay in trial has not caused due to him in any case.
3. Conversely, learned counsel for the State controverted the arguments of the learned counsel and stressed that the challan was submitted before the trial Court on 14-11-1994 and prior to that case was pending with the Investigating Agency and there is no allegation on the part of learned trial Court; as period spent during investigation under section 173, Cr.P.C. Cannot be attributed towards statutory ground on account of delay to be attributed to the Court and relied upon case- law PLD 1987 Pesh. 18 and PLD 1986 Kar.
561. Further contended that even otherwise on merits the petitioner is not entitled to the bail.
4. I have heard the arguments advanced by the learned counsel for, the parties at length and have perused the case-law cited at the bar. The contention of the learned State Counsel that the petitioner is not entitled to bail on merits at this stage is devoid of merits as the bail has been sought under 3rd proviso to section 497, Cr.P.C. And merits of the case cannot be taken into consideration. It is also pertinent to point out that bail can be sought by an accused as of right under the third proviso unless it is shown that the case falls within the purview of any of the exceptions to such proviso, as it is not a mere privilege. In that case, Court normally is not called upon to consider merits of the case and has only to come to an independent conclusion, whether the case of accused falls within the purview of 3rd proviso as it is a well-settled principle of law that bail is not a mere privilege but a right of the subject whose liberty is regarded as a precious right to be preserved undiminished.
5. The third proviso to section 497, Cr.P.C. Is reproduced as under for ready reference:-- 'Provided further that the Court shall except where it is of opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf, direct that any person shall be released on bail."
6. In case in hand, admittedly the petitioner was arrested on 28-3-1993 and was sent to judicial lock-up on 28-3-1993; the challan was submitted before the trial Court on 14-11-1994 and the copies were delivered by the trial Court to the petitioner on 22-1-1995 and the case has been adjourned sine die awaiting the turn of the trial of case.
7. Under proviso 3rd to section 497, Cr.P.C. Referred above, bail on statutory ground can be granted if the Court is satisfied that the delay in hearing of the case is not due to the accused or any other person on his behalf. The learned State Counsel admitted that the petitioner had been behind the bars for more than two years and is not able to give any indication as to when the case would be heard. The contention that challan has been submitted before the trial Court on 14-11-1994 by no stretch of imagination can be attributed to the petitioner for the delay of hearing of case. While granting bail on statutory grounds as laid down in case Akhtar Abbas v. The State PLD 1982 SC 424; all that is necessary is to be whether the finalisation of the trial has, in any manner, been delayed by an act or omission on the part of the accused.
8. In the instant case, the delay is attributable to the prosecution firstly by submitting challan on 14- 11-1994 while the accused was arrested on 29-3-1993; secondly, the case has been adjourned sine die and this cause cannot be attributed to the petitioner. The statutory period is to be considered not from the date of submission of challan rather from the date of arrest; as the petitioner is behind the bars for more than two years; I am satisfied that the petitioner is entitled to the grant of bail because the delay in the hearing of the case which is not due to his fault; further, trial is not expected to be finalized shortly. Accordingly, the petitioner shall be released on bail subject to his furnishing bail bonds in the sum of Rs,1,00,000 with two sureties each in the like amount to the satisfaction of A.C./Duty Magistrate, Gujranwala.