1. ' MUSHIR ALAM, J.--- Bail for the present two applicants Muhammad Umer son of Malik Dino and Muhammad alias Pir Bux son of Khuda Dino both by Caste Madhhi involved in Crime No,19 of 1997 of Police Station Mirpur Mathelo for offences under sections 324, 353, 147 and 149, P.P.C. Is sought. It is contended by the learned counsel for the applicants that the applicants were arrested on 15-1-1997 on the alleged commission of above crime and since then they are behind bars without any fault on their part.
2. ' Learned Additional Advocate-General appearing for the State, however, has opposed the bail on the ground that the offence alleged against the applicants of attacking the police party and intervening in the performance of the public duty is serious, they are hardened, desperate criminal need no,sympathy of the Court.
3. ' We have heard the arguments and perused the record. It is a matter of record that the applicants were apprehended on 15-1-1997. They have applied for the bail on merits before learned trial Court which was dismissed on 9-7-1998. The applicants above-named are awaiting trial before the Special Judge S.T.A., Sukkur alongwith the other co-accused who are absconding since then and the N.B.Ws. Are being regularly issued, but has not yet been served. The diaries of the trial Court produced show that on 3-9-1998 the absconding accused were declared as proclaimed offenders and proclamation was ordered to be issued against them under section 87, Cr.P.C. And publication to be effected in three national daily newspapers as required under proviso to section 5-A(4) of Suppression of Terrorist Activities (Special Courts) Act, 1975, even a counsel was appointed by the trial Court on said date, to represent the absconding accused at the State expenses.
4. ' The record shows that the matter was adjourned for almost over 30 dates from the date of proclamation upto last diary produced dated 15-3-2001. It is stated at Bar, that position has not changed, the publication as ordered has not since been issued. Learned Additional Advocate- General attempted to justify non-publication of proclamation on the ground of paucity of the funds. It is to be noted that the Suppression of Terrorise Activities (Special Courts) Act, 1975 was promulgated to combat suppression of subotage, subversion and terrorisms in most expeditious manner. Under section 5-A, Suppression of Terrorist Activities (Special Courts) Act, 1975, it is required that the Court taking cognizance of the case shall proceed with the trial on day to day basis and shall decide the case speedily, adjournment under the Act of 1975 is an exception and no adjournment beyond more than 2 days is stipulated. The Act also provides prosecution of an absconding accused in his absence and proviso to subsection (4) to section 5-A, provides that proceedings for proclamation of absconsion in terms of section 87 of Cr.P.C. Are to be undertaken expeditiously within 7 days. Such proclamation is subject to publication in at least three national daily newspapers out of which two are required to be in national language i,e, Urdu. Even bail under S.T.A. Act, 1975 is an exception. From the scheme of the Act as discussed above it is abundantly clear that such Act was promulgated with solemn object to try the culprits expeditiously and speedily and to bring home the guilt of accused persons without any delay. It is indeed sad state of affairs and in large number of cases this Court is being confronted with the bail on the ground of statutory delay solely for the reason that the proclamation as required under the proviso to section 5-A(4) of the Act has not been published and inevitably the reason assigned is non-availability of the funds. It is matter of record that more delay in S.T.A. Cases is caused for non-compliance of proviso to section 5-A(4) of the Act, then in normal course under Cr.P.C.
5. ' Delay has always been considered as a good ground for the grant of bail even same was considered as sufficient ground before the 3rd proviso to section 497(1) was added on the Statute Books. One may refer to the case of Riasat Ali PLD 1968 SC 353, case of Akber Mehmood PLD 1974 SC 224 and Malik Ghulam Jilani PLD 1975 Lah. 210 and even when during the intervening period when the said proviso was deleted the bail was considered favourably by the Courts on account of delay. One can refer to 1994 PCr.LJ 12. 1978 SCM R 248. Every person whether who is behind the bars or on bail, has not only legitimate exception but a right to be tried speedily and fairly. Equal treatment is to be meted out to a person facing trial and to the prosecution at the same time. The prosecution is duty bound to take all measures to bring home the guilt of the accused expeditiously and without delay. When the S.T.A. Act itself provides for the expeditious disposal there is no justification on the part of the prosecution to plead non-availability of the fund for publication of the proclamation it is the duty of the State to provide fund to fulfilment of such statutory requirement of the S.T.A. Act, 1975 as it is not the accused persons languishing in jail who can be burdened or deprived of their liberty without there being any trial. From the trend of the cases that are regularly coming up before this Court under S.T.A. Act, it is being experienced that large number of persons facing trial are undergoing agony of protracted trial for no fault on their part. Such callous disregard on the part of the State functionaries cannot be approved of on any ground whatsoever. Courts of law are required to meet out equal treatment to the accused persons facing trial and the prosecution at the same time.
6. In the instant case as has been shown above in the narrative the applicants are languishing behind the bars since 15-1-1997 for almost over 4-1/2 years and since almost over two years proclamation has not been published as required under the law, they cannot be deprived of the liberty without due process of law and such liberty cannot be curtailed for the fault on the part of the prosecution and State. Mere allegations that the accused are involved in attack on a police party ipso facto will not prove the guilt of the accused or to brand them hardened, desperate criminals without putting them to trial indefinitely.
7. ' Admittedly there has 'been no delay that can be attributed to them. Applicants cannot be made to suffer for the lethargy and slackness on the part of prosecution. Accused cannot be denied bail for indefinite period when trial is not in sight. Under such circumstances by short order, dated 24-7- 2001 applicants were extended benefit of bail subject to furnishing of surety in the sum of Rs,2,00,000 (Rupees two lacs) each and P.R. Bond in the like amount to the satisfaction of the trial Court.
8. ' Before parting with this order, we would record our utmost anguish over the slackness on the part of the State and prosecution not to make available requisite funds for the publication of the proclamation which is mandatory requirement under proviso to section 5-A(4) of the Act. Copy of this order may be sent to the Ministry of Law, Justice and Parliamentary Affairs to take appropriate measures by making requisite amendments in the law to overcome such a hurdle which is frustrating the very object of the Act, impeding the speedy trial and causing delay in bringing the guilt of the accused home and at the same time is likely to create great mistrust in the society generally, not only on the working of Courts but may also reflect adversely and to avoid a shadow that may be cast on the fair functioning of the State in dispensation of the speedy justice which is being used only as a slogan and nothing concrete is being done to achieve such tall claim for the speedy justice to the public at large.