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Criminal Appeal No. K‑1 of 1980 in Criminal Petition for Special Leave to Appeal No. K‑48 of 1979, decided on 8th January, 1980.

‑‑‑S. 497‑‑Penal Code (XLV of 1860), S. 302‑‑Accused in custody as undertrial prisoner for about three years‑‑Period for which case was adjourned at accused's request, if excluded, accused had been behind bars for more than two and half years‑‑State Counsel not in a position to give assurance as to when case would be heard‑‑Accused, held, was entitled to bail, delay in hearing being not due to his fault.

M. Hayat Junejo, Senior Advocate and Noor Ahmad Noori, Advocate‑on‑Record for Petitioner.

Usman Ghani, Advocate‑General (Sind) and S.M. Abbas, Advocate‑on‑Record for the State.

Dates of hearing: 7th and 8th January, 1980.

The petitioner is being tried with two other accused for murder in the Sessions Court, Hyderabad, and the learned Advocate‑General admitted that the petitioner had been arrested in July, 1976. After he had been in custody as an under‑trial prisoner for about three years, he was released on bail by the Sessions Judge on 25‑4‑1979. However, the order of the learned Sessions Judge was set aside by a learned Judge of the Sind High Court on 9‑9‑1979. Hence this petition for leave.

Mr. Hayat Junejo challenged the impugned order on merits. He also submitted that the petitioner was entitled to bail on the ground of delay alone, and in this connection he further relied on the provisions of Code of Criminal Procedure Amending Ordinance 71 of 1979, by which section 497 had been amended.

We had given notice yesterday to the Advocate‑General, because we were disturbed by the gross delay in the hearing of the case and after examining the order sheet produced by Mr. Hayat Junejo, the learned Advocate‑General admitted that the petitioner had been in custody for much more than two years. He further drew our attention to the fact that the hearing of the case had been delayed on five occasions at the instance of the petitioner. That is true, but even if the periods for which the case was adjourned at the petitioner's request are excluded, the petitioner has been behind bars for more than two and a half years. Yet the learned Advocate‑General is not able to give any assurance as to when the case would be heard. We are, therefore, satisfied that the petitioner is entitled to bail, because the delay in the hearing of the case, which is not due to his fault, is unconscionable. Accordingly after hearing the learned Advocate‑General, we have converted the petition into an appeal, set aside the impugned order and released the petitioner on bail. Bail in the sum of Rs.10,000 with two sureties of the like amount to the satisfaction of the Sessions Court, Hyderabad.

M. B. A. Bail granted

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