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Criminal Bail Application No. 401 of 1985, decided on 22nd October, 1985.

‑‑‑S. 497‑‑Penal Code (XLV of 1860), S. 302‑‑Ball‑‑Delay in trial‑ Adjournments‑‑Mere, seeking of adjournments by accused on three occasions and that too for unavoidable reasons, held, could not be regarded as delay in trial due to lapse on part of accused for which concession of bail may be withheld.

‑‑--S. 497‑‑Penal Code (XLV of 1860), S. 302‑‑Bail‑‑Deley in trial‑‑‑ Accused under custody for more than two years‑‑Case not set out for regular hearing and charge not framed‑‑Accused neither previous convict nor dangerous and desperate person‑‑Bail granted in circumstances.

Kazi Azizullah for Applicant.

S. Sarfraz Ahmed, Asstt.A.‑G. for the State.

In this case bail has been sought only on the ground of delay in the trial of the case. The applicant is facing trial under section 302, P.P.C. and according to relevant provisions he is entitled to be released on bail if he has remained as under‑trial prisoner for more than 2 years. Bail application which was moved before learned Sessions. Court was dismissed by learned II‑ Additional Sessions Judge Mr. R.C. Joshi on the g‑round that the delay was also partly due to the accused. Reliance was placed by the learned Judge on P L D 1982 S C 424 where even though accused was in custody for more than 3 years and the trial had not completed and there was delay on the part of the accused for 3 months only, yet Supreme Court refused to grant bail.

Mr. Kazi Azizullah has relied upon P L D 1982 Kar. 965 where it had been held by Mr. Fakhruddin H. Shaikh, J. that in a case there the respondent had merely applied for 2/3 times for adjournment, no inordinate delay was caused, bail was allowed to the respondent. The earlier ruling of the Supreme Court similar to one cited by the learned trial Court i.e. P L D 1982 S C 424 was distinguished by Mr. Justice Fakhruddin H. Shaikh on the ground that in that case as many as 8 adjournments were sought by the accused and, therefore, it was held that the trial was delayed by the accused himself. Moreover, in the Supreme Court case the triad was already fixed and charge was framed.

The‑present case has not even been set down for regular trial and the question of charge having been framed does not arise. Hence mere seeking of adjournment on 3 occasions and that too for unavoidable reasons cannot be regarded as delay in the trial due to the lapse on the part of accused for which concession of bail may be withheld. It has been reported by the police that Accused was neither a previous convict nor dangerous and desperate person.

Under these circumstances I feel that the applicant is entitled to the concession of bail, I, therefore, order that the applicant be released on bail on furnishing surety and P.R. in the sum of Rs.20,000 to the satisfaction of Second Additional Sessions Judge Nawab Shah.

M.Y.H. Bail granted.

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