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Criminal Miscellaneous No.6 of 1987 in Criminal Appeal No.415 of 1986, decided on 4th August, 1987.
---S.426(1-A)--Bail application for, on statutory ground--Appeal pending in Court adjourned by High Court from time to time on account of Court being busy with other work--Accused, under S.426 (1-A) , Cr. P. C . cannot claim a vested right to be released on bail nonetheless bail is refused only for reasons to be recorded in writing; if there is no reason why convict /appellant be not released, bail should be granted--No bar existed against consideration of statutory bail application by Judge other than one who had previously refused bail.
The State through Advocate-General, N.-W.F.P. v. Zubair and 4 others P L D 1986 S C 173 held not applicable.
Kh. Muhammad Sharif for Petitioner.
Shaukat Rafiq Bajwa for the Complainant.
Shah Nawaz Khan for the State.
This is an application for bail on statutory ground. It has been argued by the learned counsel for the petitioner that his previous applications for bail were rejected on merits. One of the applications was not pressed by the petitioner on the ground that the Court was pleased to order that the main appeal be fixed for hearing for disposal. Learned counsel for the petitioner has brought to my notice that the appeal was fixed on six different dates but could not be heard and disposed of on account of the Court being busy with some other work. The learned counsel for the petitioner has argued that there is no default of the petitioner in this respect. The petitioner was convicted on 29-6-1986 and was sentenced to seven years' R.I. His statutory period having elapsed, therefore, according to the learned counsel the petitioner should be released on bail after suspension of his sentence under Section 426, Cr.P.C.
2. On the other hand the learned counsel for the complainant as well as the state counsel have argued that merely because the statutory period had elapsed, it did not create vested right in the petitioner for enlargement on bail and the bail should be rejected by the Court for reasons to be recorded.
3. I have considered the arguments of both the sides. It is true that Under Section 426 Cr.P.C. no vested right is created but on the, other hand the refusal to grant bail in such circumstances is to be made for reasons as the said provision clearly provided that in such a case the petitioner shall be released on bail and it is to be refused only for reasons to be recorded. Learned counsel for the State as well as the complainant have not been able to convince me as to what are the reasons on which this concession as provided in the statute itself should be refused to the petitioner. Appeal itself was fixed on various dates which is not denied but it could not be heard and disposed of on account of the Court being busy in attending the other cases. It is not the case of the State that the delay in disposal of the appeal took place on account of the conduct of the petitioner or his learned counsel. I am of the view that there is no ground or reason to refuse to the petitioner the concession of bail on statutory ground. Learned counsel for the complainant lastly argued that since the previous bail applications were rejected by the other Court, therefore, this application should be placed before the same learned Judge and has relied upon judgment reported as The State through Advocate-General, N.-W.F.P. v. Zubair and 4 others P L D 1986 S C 173. Learned counsel for the petitioner contented that this judgment is rot applicable to the facts of this case for the reasons that it will be applicable if it were a case of application during the investigation, and secondly the bail is not being claimed on merits of the case but on statutory ground and this is why the learned Judge vide order dated 1-7-1987 issued notice and the learned Judge who issued the notice was not the same Judge who disposed of the previous applications on merits. The contention of the learned counsel for the petitioner has force and I hold that there is no bar against the consideration of this application on statutory ground by me.
4. For the foregoing reasons the bail is allowed. The execution of the sentence passed against the petitioner shall remain suspended during the pendency of the appeal and he shall be released on bail on his furnishing bail bond in the sum of Rs.10,000 (Rupees ten thousand only) with two sureties in the like account to the satisfaction of the A.C./Duty Magistrate, Gujranwala.
S.G.D./M-335/L Bail allowed.
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