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Criminal Bail Application No. 503 of 1986, decided on 16th April, 1986.
‑‑‑S. 497‑‑Bail‑‑Fresh grounds‑‑Recording of evidence‑Time limit‑ Factors on which recording of evidence depends‑‑Such factors constitute not only production of witnesses whose evidence is sought to be recorded, but also presence of accused and counsel of both parties‑‑It is also necessary that relevant papers are available and presiding judge is also present‑‑When Court becomes helpless and is unable to record evidence for reasons beyond its control, to insist upon strict observance of time limit for recording of evidence of any witness, held, would not be desirable.
--‑-S. 497(1), proviso (3)‑‑Bail‑‑Delay in trial‑‑After introduction of proviso (3) to subsection (1) of 5.497, Criminal Procedure Code, an accused has been given a statutory right to move for bail on ground of delay in trial‑‑Ground of delay will not be available to accused for bail if he remained in jail for a period of less than that specified in said provision. ‑‑[Delay].
The State v. Zubair and 4 others P L D 1986 S C 173 ref.
‑‑‑S. 497(1), proviso 3‑‑Bail‑‑Delay in trial‑‑Accused remaining in jail for about four months‑‑Bail on ground of delay in trial refused.
Syed Zaman Shah for Applicant.
A.A. Muhammadally, A.A. ‑G. for the State.
This is the third bail application which has been made in this Court on behalf of the same accused namely, Manzoor Hussain. The first two applications were dismissed as not pressed vide orders, dated 27‑1‑1986 and 2‑2‑1986. In view of the latest Supreme Court authority reported as The State v. Zubair and 4 others P L D 1986 S C 173, the learned counsel can repeat the application only on the ground which was not available to him at the time of making earlier applications.
According to the learned counsel for the accused‑the fresh ground on which the present application is based is non‑compliance of the direction of this Court that the evidence of the victim girl be recorded within one month of the order, dated 27‑1‑1986. The learned counsel has complained that bogus medical certificate was produced to show that the said victim girl was lying ill at Rawalpindi and, therefore, could not be produced for evidence. He further contended that accused has been in jail for four months.
As for his argument relating to non‑compliance of this Court direction by the trial Court, it may suffice to say that the said direction was issued at the request of the learned counsel himself. Moreover such direction cannot be construed so strictly that its non‑compliance would amount to lapse unwarranted by law, providing fresh ground for repeating the bail application. It cannot be denied that recording of evidence in Court is dependent on a number of factors. It not only depends upon the producing of the witnesses whose evidence is sought' to be recorded, but also depends upon presence of the accused and the counsel of both the parties. It is also necessary that relevant papers are available and the presiding Judge is also present. Some times the Court becomes helpless and is unable to record evidence for reasons beyond its control. In such cases to insist upon strict observance of time limit for recording evidence of any witness may not be desirable.
As for his contention that the accused has remained in jail for about four months, it does not provide ground for releasing the accused on bail. After introduction of proviso (3) to subsection (1) of section 497, Cr.P.C. the accused has been given statutory right to move for bail on the ground of delay in trial. In view of the above provision if the accused has remained an jail for a period less than that specified in the said provision, the ground of delay will not be available to the C accused for bail. Before applying for bail on that ground, he has to remain in jail for more than two years in murder case and for morel than one year in other cases. Accordingly the detention of the accused for a period of four months does not entitle him to bail.
For above reasons there is no substance in the application which is dismissed.
M.Y.H. Bail refused.
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