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Criminal Bail Application No.1045 of 1984, decided on 24th October, 1984.
---S.497(1), third and fourth provisos--Penal Code (XLV of 1860), S.302--Bail, grant of--Delay in trial--Trial of accused protracted for more than two years mostly on account of non-production of accused in Court by Jail Authorities and not due to any fault on part of accused and no evidence recorded so far--Nothing available on record to suggest that accused was a man of hardened and desperate nature- Bail allowed in circumstances.
Shamshad Khanzada for Applicant.
A .A . Mohammadally, A . A .-G . for the State.
The applicant is facing trial for offence under section 302 PPC in the Court of Vth Additional Sessions Judge, Karachi. He was arrested in June 1982 and since then the case has been pending in Court. The trial has not yet commenced except for framing of the charge. Hence a bail application was moved before the learned trig: Judge on the ground that more than two years have passed without any fault on the part of the accused/applicant, as such he is entitled to the benefit of the third proviso to section 497(1), Cr.P.C. The learned Sessions Judge dismissed the application on the ground that the applicant was a person who appears to be of "hardened and desperate nature." This order was passed on 22-8-1984. The applicant has, therefore, filed the present application for bail, on the ground that he is entitled to the benefit of third proviso to section 497(1) referred to above.
The certified copies of the diaries of the trial Court show that the trial has protracted mostly on account of non-production of the applicant in Court by Jail Authorities. On some dates the Presiding Officer was on leave, therefore, the case could not proceed. Hence it cannot be said that there was any fault on the part of the accused so far as the delay in the disposal of the case is concerned.
The learned trial Judge appears to have based his order on a recent amendment in Section 497, Cr.P.C. by Code of Criminal Procedure (Second Amendment) Ordinance, 1983 (Ordinance XXXII of 1983) whereby a further proviso has been added after the third proviso as under:----
"Provided further that the provisions of the third proviso to this subsection shall not apply to a previously convicted offender or to a person who, in the opinion of the Court, is a hardened desperate or dangerous criminal.'
In this case no evidence has been recorded so far. Hence it is conceded by Mr. A . A . Mohammadally A.A.-General that there was no material whatsoever on record to hold that the accused /applicant was a man of desperate and hardened character or that he was not entitled to bail on this ground.
From 'the record it appears that the case has protracted for more than 2 years without any fault on the part of the accused/ applicant. There is nothing on the record to suggest that the accused r is a man of hardened and disparate nature.
The application is, therefore, allowed. The applicant shall be released on furnishing surety in the amount of Rs.20,000 and P.R. D in like amount to the satisfaction of the trial court, if he is not required in any other case.
It may further be observed that if, after recording evidence in the case, the trial Court comes to the conclusion that the accused is a man of hardened or disparate nature, it shall be at liberty to cancel the bail.
M. Y. H./S-86/ K. Bail granted.
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