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Criminal Bail Application No. 6.11 of 1986 decided on 11th August, 1986.

‑‑‑S. 497(1), 3rd proviso‑‑Penal Code (XLV of 1860), S.302‑‑Bail, grant of‑‑Applicant as under trial prisoner continuously attending Military Court in first instance and subsequently Sessions Court for over two years yet trial not concluded‑‑Nothing on record available to suggest that delay in trial of applicant occasioned either by an act or omission of applicant or any person on his behalf‑‑Bail allowed in circumstances.

Ali Nawaz Ghanghro for Applicant.

Zawar Hussain Jafferi, A.A.‑G. for the State.

This application is moved on behalf of the applicant who is facing trial under section 302, P.P.C. before the Sessions Court, Larkana only on the ground that he has remained in jail for more than two years as under trial prisoner but the trial has not concluded.

Admittedly the applicant was arrested on 17‑6‑1984 and the challan was submitted before the Summary Military Court on 3‑7‑1984. The case was transferred to Court of Session on 13‑11‑1985. The charge has been framed on 30‑7‑1986.

The learned Sessions Judge rejected the bail application of the applicant on the ground that according to D.P.P. the record of Summary Military Court was not available and therefore, it cannot be said as I whether the delay in the trial was due to some act on the part of the applicant or somebody on his behalf. It was also pointed by learned Sessions Judge that even accused has not been able to produce certified copy of the diaries of the case before the Summary Military Court.

Learned counsel for the applicant argues that when even the Public Prosecutor was not able to get the record of Summary Military Court, it was beyond the capacity of the applicant to obtain any certified copies. He further contends that the contention of the applicant that the delay was caused for no fault on his part stands un-rebutted. He, therefore, submits that the applicant is entitled to be released op bail under the third proviso to subsection (1) of section 497, Cr.P.C. which is reproduced below:

"Provided further that the Court shall, except where it is of opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any, other person acting on his behalf, direct that any person shall be released on bail‑

(a) who, being accused of an offence not punishable with death, has been detained for such offence for a continuous period exceeding one year and whose trial for such offence has not concluded; or

(b) who, being accused of, an offence punishable with death, has been detained for such offence for a continuous period .exceeding two years and whose trial for such offence 'has not concluded."

The bare reading of this provision of law would show that the period undergone by the applicant as under‑‑trial prisoner during trial before a Military Court is not excluded from the period mentioned in the provisio. It further shows that such person is entitled to be released on bail unless the Court is of the opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person on his behalf. In absence of the record of the Military Court, this Court cannot form any such opinion that the delay was caused by any act or omission of the applicant or any body on his behalf. As such the applicant is ordered to be released on bail on furnishing surety in the sum of Rs.50,000 and P.R. in the like amount to the satisfaction of the trial Court.

M.Y.H. Bail allowed.

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