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Before Nasir Aslam Zahid, J
MUHAMMAD IMRAN-Applicant
versus
THE STATE---Respondent
Criminal Bail Application No. 1339 of 1986 and Criminal Case No. 18 of 1985, decided on 21st October, 1986.
(a) Criminal Procedure Code (V of 1898)---
----S. 497(1) - Penal Code (XLV of 1860), S. 307/34-Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 14 - Bail - Accused in custody for more than one year -Delay in trial not attributable to accused-Bail granted.
(b) Criminal Procedure Code (V of 1898)--
----S. 497(1) -Penal Codc (XLV o; lf,0i, S. 307/34 ----Offences -Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 14-Bail-Presiding Officer not available on account of having gone on leave or for training-Accused it, custody for more than one year--Delay in trial not attributable to accused-Bail granted to accused in circumstances.
(c) Criminal Procedure Code (V of 1898)----
---- S. 497(1)-Penal Code (XLV of 1860), S. 307/34 - Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 14 - Bail ---Abscondence of accused-Accused since his arrest after about a month of registration of F. I. R. in continuous custody for more than one year-Accused, held, could not be dep rived of concession of bail in circumstances.
Akhlag Ahmed Siddiqi for Applicant.
A. A. Mohammadally, Asstt. A.-G. for the State.
This bail application is being pressed on the ground of delay of over one year in the finalization of the case against the applicant, who has been in continuous custody since 4-8-1985. Bail application moved by the applicant on the ground of delay has been rejected by the learned trial Court by order dated 7-8-1986. Hence the present bail application.
The applicant is involved alongwith co-accused Nasim in a case under section 307/34, P. P. C. and section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. According to the learned counsel for the applicant, co-accused Nasim had been granted bail in December, 1985, by the trial Court.
Diary-sheet has been produced and it indicates very clearly that the delay in the finalization of the trial is not at all attributable to any act or omission on the part of the applicant. Three reasons given by the trial Court in rejecting the bail application on the ground of delay are as follows:-
"No doubt the accused has completed one year of his detention on 4-8-1986, but from 16-12-1985 to 6-3-1986, the case could not be proceeded due to non-presence of Presiding Officer, of the Court, who was on Shariat Training. Furthermore, at initial stage the accused was absconder for some period and was shown absconder by the police. It is well-settled law that the fugitive from police cannot claim privilege of bail. Furthermore, even the accused moved an application for bail before the Honourable High Court was dismissed, though not on merits."
In the facts of .this case, I am of the view that none of the three reasons mentioned by the trial Court are valid for denying the concession of bail to the applicant under the third proviso to section 497(1),) Cr. P. C.
Firstly, an accused cannot be denied the concession of bail under the aforesaid provision of law on the ground that Presiding Officer was not available on account of having taken leave or having gone on some training. A perusal of the third proviso to section 497(1), Cr. P. C. g shows that what is to be considered is whether the delay in the finalization of the trial is on account of any act or omission attributable to the accused seeking bail. If the residing Office; had gone for Shariat Training and on that account the delay has taken place, such delay cannot be attributed to the applicant.
Secondly, the diary-sheet shows that since the arrest of the applicant in August, 1985, he has been in continuous custody. If he was arrested after about a month of the filing of the F. I. R., he cannot be deprived G of the concession of bail under the third proviso to section 497(1), Cr. P. C.
In so far as the rejection of the bail by the High Court is concerned, it is an admitted position that the ground of delay had not been taken at that time, as apparently one year period had not expired when the bail applica tion was considered and decided by the High Court.
More than one year has expired since the applicant was taken into custody in this case. The delay is not attributable to the applicant D at all. He is entitled to bail under the third proviso to section 497(1),1 Cr. P. C.
Criminal Bail Application No. 1339 of 1986 is granted and it is directed that applicant Muhammad Imran son of Syed Farooq be released on bail on his furnishing one surety in the sum of Rs. 20,000 with P. R. bond in the like amount to the satisfaction of the trial Court.
M. B. A. Bail granted.
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