1. ' ABDUL LATIF U. QURESHI, J.--- The applicant along with other co-accused have been challenged in the Court of Special Judge, S.T.A., Karachi in Special Case No,37 of 1993 arising out of F.I.R.
2. No,35/1989 registered at Police Station Gulberg, Central Karachi, on 21-1-1989. The relevant facts are that Muhammad Idrees lodged F.I.R. That on the relevant day he was present in the house, when he was informed that 3/4 unknown persons had stopped the car of his son Sohail, who is a medical student, kidnapped him along with his niece Maria Habib aged 9-1/2 years.
3. ' The applicant moved application for bail on the point of statutory delay but the same was rejected on the ground that he is a hardened and habitual criminal and involved in more than 10 cases, list of which is also given in the bail order.
4. ' The learned Advocate for the applicant argued that out of 10 cases registered against the applicant, applicant was convicted in three cases and sentenced for 7 years' R.I. Each, but in appeal he has been acquitted in two of the cases while his appeal has been rejected in only one case, which was registered under section 307, P.P.C. He further submits that proceedings in two other cases have been stopped under section 249, Cr.P.C. And he has been released. In remaining four cases he has been granted bail by the High Court. The learned counsel further contends that in view of the IIIrd proviso to section 497(1), Cr.P.C. He is entitled to be released on bail as he has remained in jail since 1989 and not a single witness has been examined so far. According to him the co-accused Nawab Laghari against whom the evidence is identical has also been released by the trial Court and in view of the Rule of Consistency he is also entitled to be released on bail.
5. ' The learned Advocate for the State contends that the applicant is involved in 10 cases, as such, he is deemed to be desperate, hardened criminal and is also a previous convict.
6. ' Third and fourth provisos to section 497, subsection (I) and amended by Code of Criminal Procedure (Amendment) Act, 1995 read as under:-- "2. Amendment of section 497, Act V of 1898.-- In the Code of Criminal Procedure, 1898 (Act V of 1898), in section 497 in subsection (1) in the second proviso, for the full-stop at the end, a colon shall be substituted and thereafter the following provisos shall be added, namely:-- ' 'Proided 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 or in exercise of any right or privilege under any law for the time being in force, direct that any person shall be released on bail---
(a) who, being accused of any offence not punishable with death, has been detained .For such offence for a continuous period exceeding one year and whose trial for such offence has not concluded; or
(b) who, being accused of an offence punishable with death has been detained for such offence for a continuous period exceeding two years and whose trial for such offence has not be concluded: ' Provided further that the provisions of the third proviso to this subsection 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."
7. ' Admittedly, the applicant was arrested in 1989 and is still in jail. According to the learned counsel for the applicant not a single witness has been examined so far. Plain reading of section 497, subsection (1) indicates that applicant is entitled to be released on bail if his case is not hit by 4th proviso. In case of Zahid Hussain Shah v. The State PLD 1995 SC 49 it has been held that it is right of accused to get bail under 3rd proviso to section 497(1), Cr.P.C. And it is not left to discretion of the Court but is controlled by that provision which gave the accused statutory right. Bail can be refused only if case of the accused fell under 4th proviso to section 497(1), Cr.P.C. This principle is based on earlier judgment of the Supreme Court in Nazeer Hussain v. Zia ul Haq and others 1993 SCMR 72. In case of Mumtaz and 13 others v. The State 1992 PCr.LJ 2325, bail was granted to the accused on the ground that he has remained in jail for over 4/5 years and such delay has been held as scandalous.
8. ' In the instant case out of 10 cases listed against the applicant/accused, he has been acquitted/released on bail in 8 cases. He cannot be termed as desperate or dangerous, because accused is presumed to be innocent till proved guilty, and mere fact that he has been challenged in some cases cannot make him desperate and dangerous specially when he is acquitted or released on bail in most of cases. One of the case in which he has been convicted for seven years is under section 307, P.P.C.; the maximum punishment prescribed under that section is 10 years as no injury was caused and not life imprisonment, which is requirement of the 4th proviso to section 497, subsection (1), Cr.P.C. Even otherwise detention of an under trial prisoner for six years in jail is shocking. It appears that the prosecution is interested in prolonging the trial otherwise they could have procured the witnesses and completed the case within six years the period the applicant has remained in jail.
9. ' Co-accused Nawab has been released on bail by the trial Court. Evidence against the present applicant is same as against co-accused Nawab. The Rule of Consistency is always upheld by the Courts. Learned counsel for the applicant has cited cases of Abdul Sattar and others v. The State 1982 SCM R 909, Abdul Salam v. The State 1980 SCM R 142 and Muhammad Afzal and Bodi v. The State 1979 SCM R 9.
10. For the purpose of bail the law is not to be stretched in favor of that prosecution and any doubt arisen in that case must go to the accused.
11. ' In view of the fact that co-accused against whom evidence is identical has been released on bail, the applicant has either been acquitted or released on bail in 8 out of the 10 cases listed against him and one case in which he has been convicted, the offence is not punishable with death or imprisonment for life. The applicant has remained in jail for six years. He is allowed to be released on bail on furnishing one surety in the sum of Rs,-1,00,000 and P.R. In the like amount to the satisfaction of trial Court.
12. ' These are the detailed reasons for our short order already announced on 27-9-1995.