1984 PLP 613 (SCMR)

ZAFFAR HUSSAIN MIRZA, J.‑‑This is an appeal by special leave from an order dated 19‑6‑1983 passed by a learned Single Judge of the Sind High Court canceling the bail granted to the appellants earlier by the learned IV the Additional Sessions Judge, Hyderabad.

2. Leave was granted in this case in order to consider the question whether the learned Judge in the High Court rightly interpreted the provisions of the III proviso to section 497 (1) Criminal Procedure Code in refusing to allow bail to the appellants on the ground that the delay in the trial was occasioned by the act or omission of the co‑accused.

3. The appellants are facing trial under section 302/34 of the Pakistan Penal Code for the murder of one Shafi Muhammad in the Court of IVth Additional Sessions Judge, Hyderabad. The F. I. R. in this case was registered on 14‑8‑1980. Appellant Shouki alias Shoukat was arrested on I‑7‑1980 while appellant Shafi Muhammad was taken into custody on 21‑8‑1980. It is stated that the trial of the appellants commenced on 26‑8‑1981. However, as the trial did not conclude within the period of two years from the date of arrest of the appellants they applied for their release on bail before the trial Court in terms of section 497 (1) III proviso of Cr. P. C. The trial Court released on bail the former on 13‑9‑1982 and the latter on 8‑12‑1982. Being aggrieved by the orders of release of the appellants on bail by the trial Court, complainant Darya Khan approached Sind High Court with an application for cancellation of their bail, It was contended before the learned Single Judge firstly that the appellants had not completed two years of their continuous detention as under‑tried prisoners and secondly that they were not entitled to the concession of bail as the trial was delayed because epated adjournments were obtained by the appellants or their counsel. The learned Judge after a laborious examination of the case diaries came to the conclusion that as the trial had to be adjourned on a number of occasions on applications for adjournment submitted on behalf of the appellants or on account of the absence of their counsel, the delay in the trial of the accused was attributable to their acts or omissions and, therefore, they were not entitled to be admitted to bail. He observed as under :‑ "From the above narration of facts it is abundantly clear that except for one or two occasions when the case was adjourned on account of illness or absence of Presiding Officer and the State counsel all adjourn?ments in the case were obtained by the accused persons or for the reason that they were not willing to be represented by the pauper Advocates appointed to defend them in the case. The delay of trial in these circumstances was mostly attributable to the acts and omissions of respondents and their counsel and, therefore, it was not a fit case in which the respondents could avail of the concession contained in the III proviso to section 497 (1), Cr. P. C. for grant of bail due to delay in their trial. . It was urged before him on behalf of appellant Shoukat that he was respon?sible only for one adjournment and the rest of the adjournments were at the instance of co‑accused but the learned judge repelled this argument on the ground that since he was being jointly tried along with other co-accused who were at fault in the matter of delay in the trial, his case cannot be separately considered. On these considerations the learned Judge cancelled the bail of the appellants.

4. We have heard Mr. Usman Ghani Rashid, learned counsel for the appellants as well as Mr. M. Ibrahim Memon, learned Additional Advocate General on behalf of the State. It has been pointed out by Mr. Usman Ghani Rashid that appellant Shoukat was really responsible only for one adjournment on account of which the trial was postponed by 10 days and according to the submission of the learned counsel, even if this period is deducted from the total period of continuous detention of the said appellant, he would still be found entitled to be released on bail. As regards appellant Shafi Muhammad, learned counsel conceded that nine adjournments were obtained on his behalf but his submission was that on six occasions his counsel was busy in the High Court, whereas on three occasions no prosecu?tion witness was present. Learned counsel, therefore, contended that since the Court found good reasons for adjourning the trial, the said appellant can not be blamed for occasioning the delay. Learned Additional Advocate General did not controvert the submission that appellant Shoukat was responsible for only one adjournment.

5. After hearing the learned counsel at length we are inclined to agree with the submission that appellant Shouki alias Shoukat was rightly granted bail by the trial Court. On the plain language of the III. proviso' to section 497, Criminal Procedure Code we regret our inability to subscribe to the view that prevailed with the learned Judge in the High Court, that the act or omission of one of the co‑accused who are being jointly tried would deprive the others of the benefit of bail although individually such other co‑accused is not himself responsible for the delay in the trial From the admitted facts it would appear that appellant Shoukat was not responsible for delaying the trial beyond the period of two years. It has also been conceded that the solitary occasion when, on 13‑9‑1981 the adjournment of the case in the trial Court could be attributed to appellant Shoukat's counsel being absent, the counsel for the other co‑accused was also absent and for the third co‑accused an adjournment application was made. Taking into consideration all these circumstances we are unable to hold the said appellant to have occasioned the delay in the trial. We are sure that if the learned Judge in the High Court had considered the case of each appellant individually he would have reached the same conclusion. On the admitted facts we are further unable to uphold the conclusion of the learned Judge that appellant Shoukat had not remained in continuous detention for period of over two years.

6. The case of two other appellants viz. Shafi Muhammad, however, stands on a different footing. We find no force in the contention that merely because the Court granted the adjournment on an application submitted by the accused, the blame cannot be attributed to such an accused for whose benefit the adjournment was granted. The fact that counsel representing the accused is busy with other professional work and is unable to attend the trial of the accused will not ipso facto be construed a justification for delaying the trial. The accused has no doubt right to re represented by the counsel of his choice but if he has chosen a counsel who is frequently busy with other work, he cannot be heard to say that the delay was not occasioned on account of his act or omission. The law quite clearly embraces in this regard the acts and omissions of other persons acting on behalf of the accused. It is for the counsel of the accused to arrange his cases in such a manner so as to save his client from consequences provided by law in the delay of the trial.

7. For the foregoing reasons, the appeal is allowed to the extent that Shouki alias Shoukat son of Haji Nazar Muhammad is allowed bail on the same terms as ordered by the Additional Sessions Judge, Hyderabad vide his order dated 13‑9‑1982. The appeal of Shah Muhammad son of Qadir Bux fails is. M. Z. M. ???????????????????????????????????????????????????????????????????? Order accordingly.