1. ' DR. GHOUS MUHAMMAD, I.- This order shall dispose of the application under section 561-A, Cr.P.C.
2. Submitted on behalf of the applicants for grant of bail who are facing trial in Criminal Case No.19 of 1995 State v. Muhammad Asini and others for the offences under sections 302(a), 307(a), 325, 120, P.P.C. And 5/6 Bomb Explosive Act, being Crime No.70 of 1993 registered at Police Station Kotri (District Dadu).
3. Bail applications were submitted on behalf of the applicants before the Judge Special Courts (Suppression of Terrorist Activities) No.II Hyderabad on 12-7-1995 and since then the said applications are pending as no order have been passed therein. Briefly stated, the facts of the case as disclosed in the F.I.R. Lodged by S.H.O. Haji Talib Hussain of Police Station Kotri are that on 30-6- 1993 vide entry No.24 he alongwith his subordinate staff went for Muharram duty. When the police party reached at Eidgah at 23-50 hours the participants of procession were offering mourning (Matum) at Shahi Bazar. Suddenly there was an explosion and H.C. Ali Akber, P.C. Fazal Ali Shaikh, Mukhtiar Ali and others told the police party that the persons who had caused explosion were running away. The police party also saw the two persons running away. On the direction of the S.H.O. Those two persons were chased after. Initially, one was caught while the other was also apprehended by A.S.-I. Niaz Hussain and his subordinates thereafter, in the chase. They disclosed their names as Asim and Abdul Sattar. It is alleged in the F.I.R. That they had confessed their guilt and further disclosed that they were members of Anjuman Sipah-e-Sahaba (A.S.S.) and their Moazzin (Nazim Hussain) had given them a hand grenade with directions by Moulvi Saeed to throw the same on the Matum procession of Kotri. The accused were brought at the police station and ultimately the case was challaned in the Court of Judge (Special Court-II) (Suppression of Terrorist Activities) Hyderabad. Admittedly applications for bail were moved before the trial Court which were rejected on merits. Thereafter, bail applications filed before this Court were also dismissed.
4. Subsequently the applicants on 12-7-1995 PCr.Ll repeated the bail applications before the trial Court on the ground of statutory delay as according to them more than two years had lapsed without any progress. The repeated bail applications have been pending before the trial Court without decision till date i.e. For more than 8 months, hence the present application to invoke the inherent powers of this Court to grant bail. We have heard Mr. Muhammad Aslam Bhatti learned counsel for the applicant and Mr. Abdul Latif Ansari learned Additional Advocate-General for State and Mr. Ahmed Ali Shaikh who had also filed his Vakalatnama on behalf of the complainant. We have also perused the record. The learned counsel for the applicants submitted that the second bail applications were submitted before the trial Court on 12-7-1995, however, in spite of a lapse of more than 8 months the bail applications have not been disposed of which have resulted in unnecessary detention of the accused in jail.
5. Furthermore, by not passing the orders on the bail applications which is a matter of urgency, the trial Court has acted beyond its jurisdiction. Such an inaction amounts to an abuse of process of law, equity and justice. Therefore, finding no other remedy the applicants were constrained to approach this Court for bail seeking to invoke its inherent powers. On the other hand, the learned Assistant Advocate-General has submitted that till such time the bail applications before the S.T.A.
6. Judges were first decided, this Court had no powers to entertain the present applications or enlarge the applicants on bail under its inherent powers. The learned counsel for the complainant submitted that the applicants/accused were behind the bars for more than two years because they are involved in a heinous offence, and are thus not entitled to be released on bail. The Judge, Special Court-II (Suppression of Terrorist Activities) Hyderabad, (Mr. Muhammad Azim Panhwar) in his comments has stated that the learned defence counsel had submitted bail applications on 12- 7-1995 on behalf of the applicants/accused which were fixed for hearing on 19-7-1995. A notice was issued to the Special Public Prosecutor and a report was called from the concerned police. On 19- 7-1995 the report from police was not received in view whereof the hearing of bail applications was adjourned to 3-8-1995. Since then the bail applications have been pending on the record as they have not been pressed. We have given our anxious consideration to the above submissions of the learned counsel for the parties. In order to decide the present application we feel that the decision on the following would be a necessary exercise:--
(i) Whether the S.T.A. Judge are under an obligation to decide bail applications on merits, expeditiously and whether there is to be a prescribed time limit in this regard. In case there is a delay on the part of the S.T.A. Judges to decide the bail application, whether the said inaction can be construed as an action to dismiss the bail application or to allow the bail application.
(ii) In case the answer to the above issue is to the effect that the present application is maintainable whether the applicants are entitled to be enlarged on bail on merits i.e. Due to the statutory delay. We shall take the first issue at the outset. The Suppression of Terrorist Activities (Special Courts), Act, 1975 (hereinafter "the 1975 Act") was enacted to make a special provision for the purpose of suppressing the acts of sabotage, subversion, terrorism and to provide for a speedy trial of offences committed in furtherance of or in connection with such acts. The 1975 Act does not specify or prescribe the time limit within wench S.T.A. Judge is to dispose of a bail application pending before it. However, it is needless to emphasise that the spirit of the 1975 Act, mandates a speedy trial and disposal of cases and to such effect is also the wording of the preamble to the 1975 Act. We may also observe that bail applications are matters of urgency. In such matters a citizen's right of liberty is at stake which requires an immediate attention on the part of the concerned Courts. Articles 3 and 4 of our Constitution contain the due process clause, while Article 37(d) of the Constitution makes provisions for inexpensive and expeditious justice. Accordingly, there can be no cavil with the proposition that when faced with matters pertaining to bail, S.T.A.
7. Courts or any other judicial or quasi judicial forum have to dispose of such matters expeditiously and without any delay. In this case the parawise comments submitted by the S.T.A. Judge state that the initial delay had been caused due to non-submission of the police report and thereafter, the applicants failed to pursue the bail applications by not getting them fixed. We may observe that non-submission of police report is hardly a ground to justify the failure to decide the bail applications. The Court should grant the prosecution the shortest possible time to submit the report/challan/interim challan if that at all is to be a ground to delay the disposal of a bail application. The entire idea being that the prosecution before apprehending the accused should have conducted the investigation of the case. The procedure should not be the other way round where the accused is first arrested and then the prosecution proceeds with the investigation process. In any event, the accused/applicant cannot be penalised for failure of the prosecution to submit the police report and no delay to dispose of the bail application is justified on such grounds.
8. Secondly it is the duty of the concerned Court to fix and dispose of the bail application. Also it is not the duty of the applicant to pursue its fixation. Admittedly, it is not the prosecution's case that the delay in deciding the bail applications has occurred due to adjournments requested on behalf of the accused themselves.
9. In this manner, there can be hardly any justification for the failure of the S.T.A. Judge to decide the bail applications expeditiously. Having said that, the interconnected question is as to what would amount to an expeditious disposal of the bail application i.e. How much time should this exercise consume. We are mindful of the fact that there can be no hard and fast rule in this regard, As a matter of laying down the law we would, however, like to observe that the disposal of such an application should be within a reasonable period of time and of course done expeditiously. What would be a reasonable and expeditious period of time would no doubt differ from case to case, depending upon the facts and circumstances. In the present case a reasonable and expeditious period of time would not have been for more than 3 to 4 dayi. Accordingly, there can be no doubt that the learned S.T.A. Judge has materially erred by not deciding the bail applications for even more than eight months. The question now is as to what course can this Court adopt. There are three options available to us:--
(a) to give a direction to the S.T.A. Judge to dispose of the matters expeditiously within a week.
(b) to treat the inaction of the learned S.T.A. Judge as a gesture allowing the bail application;
(c) to treat the inaction of the S.T.A. Judge as an action rejecting the bail application and then treating the present application on merits as an appellate Court or in the exercise of inherent powers; Option, No.(a) has been exercised by a number of our brother 7 Judges as also ourselves only to observe that such directions are usually ignored. No doubt such a position reveals a sad state of things which can further lead to the invoking of our contempt jurisdiction upon the recalcitrant.
10. However, this hardly gives the remedy to the accused/applicant. Option No.(b) is based upon the general principle that if a person makes an application or intimates to the other about certain facts and no denial or rebuttal is made available by the recipient of such application/intimation, the person making the application or forwarding the intimation may presume his application or intimation to be accepted. However, in matters of bail such a course in our society can open up a number of undesired avenues. One such avenue could be the course where the S.T.A. Judges while not deciding the bail applications warranting rejection on merits on purpose for extraneous reasons, secure a grant of bail by invoking this principle. In view of the aforesaid we feel that the Option No.(c) would be the best course whereby the inaction of the trial Court to dispose of the bail application within a reasonable time is seen as an act of rejecting the bail and allowing this Court or any other superior forum to adjudicate upon the bail application on merits as an appellate Court or even exercising the inherent powers under section 561-A of Cr.P.C.
11. Having now laid the inaction of the S.T.A. Judge in this case to be an action equated with an order rejecting the bail, the question is whether the applicants are entitled to bail on statutory delay. Admittedly, there has been a delay of more than two years which has given the applicants/appellant the justification to invoke the third proviso to section 497 of the Cr.P.C. No material has been brought on record to show that the applicants are previously convicted offenders or hardened, desperate or dangerous criminals. Also the delay in the trial which is more than two years is not attributable to the accused. In this manner, the applicants are squarely entitled to be released on bail. (See the unreported decision of the Supreme Court in Criminal Petition No.52-K of 1995, dated the 26th August, 1995 Jaggat Ram v. The State.
12. By our short order, dated 15-12-1996 and for reasons to be recorded later on we had allowed this Criminal Miscellaneous Application and admitted the applicants/accused to bail on furnishing of surety each in the sum of Rs.1,00,000 (rupees one lac only) with P.R. Bonds in the like amount to the satisfaction of the learned trial Court. The above are the reasons for the same.