1999 P Cr (PLP)

THE STATE‑‑‑Respondent Criminal Miscellaneous No.4791/B of 1998, decided on 30th September, 1998 ‑‑‑S. 497(1), third proviso‑‑‑Penal Code (XLV of 1860), S.302/337‑A(i)/34‑‑ Bail on ground of statutory delay‑‑‑Accused or his counsel had been seeking adjournments one after the other in the case‑‑‑Two years' period had not been fixed in the statute as a matter of limitation, rather the same had been prescribed to speed up the progress of the trial‑‑‑When the trial was hampered or delayed especially when. the witnesses were present, such right of bail to accused under the statute would not be available to him‑‑‑Accused could not be allowed to approbate and reprobate‑‑‑Bail was declined to accused in circumstances. Zafar Ullah Cheema for Petitioner. The petitioner is required in case F.I.R. No.546 of 1995 registered with Police Station Saddar Samundari under sections 302 and 337‑A(i) read with section 34, P.P.C. In all there were three accused persons named in the F.I.R. Two of the "co‑accused namely Ibrar Hussain and Dilshad Hussain have been admitted to bail on merits. The allegation against the petitioner is that Sakhawat caught hold of Rasheed and inflicted a Chhuri blow on the front of chest who succumbed to the injuries at the spot. Bail has been sought on the ground of statutory delay. It is, therefore, argued that the occurrence took place on 12‑12‑1995 and challan was submitted in Court on 10‑3‑1996. The learned counsel admits that four adjournments have been obtained by the petitioner but if total time consumed on account of these adjournments is counted, the same comes to about seven months, and if that period of seven months is deducted from the total period even then there is delay of more than two years. I am not convinced with the argument. The amendment in section 497, Cr.P.C. was incorporated to ensure speedy trial of accused person but the concession has been qualified with the condition that in case delay has been caused by the accused person himself or anyone on his behalf then that person would not be entitled to the concession. I have gone through the interim orders. On 24‑3‑1996 although the petitioner alongwith his co‑accused appeared but they did not engage counsel and sought adjournment. Case was adjourned to 31‑3‑1996 but no counsel was engaged. Again on 26‑5‑1996 counsel was not engaged then on 28‑7‑1996, 10‑10-1996 then 13‑11‑1996 then 19‑1‑1997 the learned trial Judge was on leave. Then on 26‑2‑1997 again an opportunity was sought to engage a counsel. On 7‑4‑1997 copies of documents were distributed to the accused. On 31‑5‑1997 for the first time the learned counsel appeared and submitted his power of attorney on behalf of two co‑accused. On 24‑6‑1997 Sakhawat petitioner did not engage the counsel and sought another opportunity. On 17‑7‑1997 the petitioner engaged his counsel and the case was adjourned to 10‑9‑1997. On 10‑9‑1997 counsel for the petitioner submitted his power of attorney. On 6‑10‑1997 two prosecution witnesses namely Muhammad Sharif and Muhammad Saleem were present but the learned counsel for the petitioner sought an adjournment. Again on 28‑10‑1997 the prosecution witnesses were present but the learned counsel for defence raised objection which is unsustainable. It appears that objection was raised that witnesses should be examined together. The case was adjourned. Thereafter, a number of adjournments have been granted and at present the case has been adjourned to 19‑10‑1998 for recording of prosecution evidence. From the perusal of those adjournments it appears that the accused or their counsel have been seeking adjournments one after the other. Two years period has not been fixed as a matter of limitation rather the period has been prescribed so the, trial is expedited but in case trial is hampered or delayed especially when the witnesses were present then this right accrued to the accused under the statute, would not be available to him, because had the learned counsel conducted the case, trial would have been concluded much earlier. No one can be allowed approbate and reprobate. I do not find' any merits in this petition which is disposed of accordingly. However, the learned trial Court is directed to conclude the trial expeditiously. Disposed of. N.H.Q./S‑260/L Bail refused.