1. ' The applicant Muhammad Hanif is facing trial in Sessions Case No,137 of 1998 in the Court of learned Ilnd Sessions Judge, Karachi-East, in an offence under section 302, P.P.C. In F.I.R. No,102 of 1997 registered at Police Station Orangi Town, Karachi-West.
2. ' The bail prayer was moved on behalf of the applicant/accused in the trial Court, but the same was dismissed on 13-2-2001 on the ground that the accused is involved in a heinous offence of brutal murder of an innocent boy of 3 years, as such his case falls under fourth proviso to subsection (1) of section 497, Cr.P.C. The trial Court has termed the act of accused that applicant/accused is a dangerous, desperate and hardened criminal.
3. ' It is advantageous to reproduce F.I.R. Of this case as under:--- "I live at the abovementioned address and am employed in a Plastic Workshop at Dhobi Ghat. A person named Waheed lives in my neighborhood whose sons Rasheed and Hanif, oftenly beat my children, 4/5 days ago Rasheed's son beat my son Arman, aged about 3 years, whereupon my wife had gone to their house to complain. Upon this, Hanif angrily told my wife that he would finish the daily fight of my son Arman. Today, after duty, when I stepped down from a wagon and was proceeding towards my house and walking through the lane when I reached near vacant plot in my mohallah at about 8-00 p.m. I found a number of mohallah people including men, women, children and others, gathered there. My mother-in-law Khatoon was crying in a vacant room on this plot and my brother-in-law Muhammad Aslam was also standing nearly and the dead body of my son Arman aged three years was lying there with blood Arman's neck was cut and some blood was oozing out. Upon enquiry, my brother-in-law Muhammad Aslam told me that today in the evening he was standing in the lane and child Arman was also playing with girls Hina and Bunya.
4. At 7-00 p.m. Waheed's son Hanif came and kissed Arman and picked him up and took him towards the vacant plot. After sometime, Hanif returned a bit for worried and went to his house. There were stains of fresh blood on his both hands and on front of shirt. Aslam narrated these facts to his mother and both of them in order to trace out Arman reached that plot and saw that the neck of Arman was chopped and he was shivering with pain. Upon their crying other people of mohallah were also gathered. In my presence police too had reached the scene. Now I have come to report.
5. My complaint against accused Hanif son of Waheed is due to having grudge of quarrels of children, killing my young son Arman aged three years by cutting his neck. Action be taken.
6. Reported heard and found correct."
7. ' The applicant/accused was arrested on 18-6-1997 by Inspector Muhammad Khalil Tipu and on the pointation of the complainant and in presence of witnesses Muhammad Arshad and A.S.I.
8. Muhammad Aslam Baluch on 20-6-1997 at about 2-00 p.m. The applicant/accused led the Investigating Officer to his house and produced bloodstained clothes, which he was wearing at the time of incident. On 25-6-1997, the applicant/accused led the police party to the place of incident and pointed out the place to the Investigating Officer as well as in presence of the witnesses Raees Ahmed, P.C. Muhammad Asif. The statements of the witnesses under section 164, Cr.P.C. Were recorded by the Magistrate, but since 1997 after the arrest of the accused the investigation remained with the police without any progress and the challan was submitted on 20-3-1998. This challan was submitted after delay of nine months whereas under provision of section 173, Cr.P.C.
9. Challan is to be submitted within 15 days, but in spite of availability' of positive evidence recorded in the year of 1997 challan was withheld by the prosecution malafidely although the accused was in custody since 18-6-1997.
10. ' It is contended by the learned counsel for the applicant that accused is in custody since 18-6- 1997, but the trial Court has not concluded the case and period of more than four years has been passed without any progress. The bail application was moved in the trial Court on the ground of delay as provided under section 497(3), Cr.P.C. Learned counsel for the applicant has also certified true copy of the evidence of Medical Officer, namely, Dr. Qazi Irshad Ahmed being Exh.4, which was recorded on 14-4-2000. It is advantageous to reproduce the deposition of the witnesses as a Court Witness No,1, as under:- ' "I am posted as Assistant Professor Psychohistory and Incharge Department Civil Hospital Karachi.
11. On 18th January, 2000 accused Muhammad Hanif was examined by me for assessment of his mental state and treatment. I conducted necessary investigation and examined the accused personally. The accused is a known case of mental illness and he has remained under treatment of such ailment many times with different doctors in psychohistory. In my opinion he is suffering from chronic mental illness and requires regular treatment. The level of his illness is major. I say he is unsound minded person and incapable of making his defence, for definite opinion fresh examination is necessary."
12. ' Learned counsel for applicant has also filed a certified true copy of a certificate dated 23-2-1999 pertaining to the ailment of the applicant/accused. The said certificate has been issued by the Karachi Psychiatric Hospital alongwith the certificate report issued by the Civil Hospital, Karachi dated 31-1-2000, which indicates that the applicant/ accused has a history of mental ailment. The trial Court has framed the charge on 24-9-1998 but up to this time there is no progress.
13. ' Learned counsel for applicant has further urged that section 466, Cr.P.C. With the relevant provision of law for the release of lunatic person pending investigation or trial. For the sake of convenience section 466, Cr.P.C. Is reproduced as under:-
466. Release of lunatic pending investigation or trial. ---(1) Where an accused person is found to be of unsound mind and incapable of making his defence, the Magistrate or Court, as the case may be, whether the case is one in which bail may be taken or not may, release him on sufficient security being given that he shall be properly taken care of and shall be prevented from doing injury to himself or to any other person and for his appearance when required before the Magistrate or Court or such office as the Magistrate or Court appoints in this behalf.
(2) Custody of lunatic.---If the case is one in which in the opinion of the Magistrate or Court, bail should not be taken, or if sufficient security is not given, the Magistrate or Court, as the case may be, shall order the accused to be detained in safe custody in such place and manner as he or it may think fit and shall report the action taken to the Provincial Government: ' Provided that no order for the detention of the accused in a lunatic asylum shall be made otherwise than in accordance with such rules as the Provincial Government may have made under the Lunacy Act, 1912."
14. ' In support of his contentions, the learned counsel for the applicant/accused has placed reliance on a case, reported in 1992 M LD 414, wherein it has been held that where the Court finds that the accused is of unsound mind and consequently incapable of making his defence, it must proceed under section 466, Cr.P.C. Quoted hereinabove.
15. ' Mr. Fazlur Rehman, learned State counsel has conceded for the grant of bail on the ground of statutory delay, as the applicant/accused is in custody since more than 4 years and after framing of charge no evidence has been recorded by the trial Court and so also on the ground of ailment he has stated that the Court witness has opined that the applicant/accused is suffering from mental ailment and requires treatment.
16. ' I have heard the arguments advanced by the learned counsel for the applicant as well as the learned State counsel and have also perused the material available on record so also gone through the case-law cited by the learned counsel for the applicant/accused.
17. 'Admittedly, the applicant/accused was arrested on 18-6-1997 and the challan was submitted on 20-3-1998 after lapse of more than 9 months. The learned trial Court while rejecting the bail application did not discuss or mention the grounds in respect of the statutory delay.
18. ' The Investigating Officer and the S.H.O. Remained negligent in performance of their duties and due to this act the applicant/accused remained without trial in the competent Court of law, as there is no delay on the part of the applicant/accused for the conclusion of the trial, hence the applicant/accused under third proviso to section 497(1), Cr.P.C. Is entitled for grant of bail as a right. The provisions of law are mandatory rather discretionary as regards statutory delay, as has been held in case of Zahid Hussain Shah v. The State reported in PLD 1995 SC 52-53.
19. ' In the above case, it has been held by the Hon'ble Supreme Court that the right of an accused to be enlarged on bail under the third proviso to section 497(1), Cr.P.C. Is a statutory right which cannot be denied under discretionary powers, of the Court to grant bail. There is another unreported case of this Court in Criminal Bail Application No,123 of 2001 (Lal Dino alias Lalu v. The State), wherein it has been laid down that from the date of arrest the case has not proceeded with no fault of the applicant and the concession of bail was extended to the accused while relying upon the cases reported in PLD 1995 SC 52, 1993 SCM R 525 and 1999 PCr.LJ 501.
20. ' In view of the grounds urged by the learned counsel for the applicant/accused coupled with the no objection of the learned State counsel as well as keeping in view the case-law and provisions of section 466, Cr.P.C. Referred to hereinabove, I am of the opinion that applicant/accused is entitled for the concession of bail.
21. ' Accordingly, the bail is granted to the applicant/accused in the sum of Rs,1,50,000 and P.R. Bond in the like amount to the satisfaction of the trial Court.