2000 PLP 1417 (YLR)

The petitioner through this petition has sought post‑arrest bail in a case vide F.I.R. No.23 of 1998, dated 31‑1‑1998 under sections 324 and 337‑F(v), P.P.C. registered at Police Station Sadar, Baruni, Rawalpindi.

2. The bail for the petitioner is being pressed on the statutory ground only. To elucidate his contention, he submits that occurrence took place on 31‑1‑1998 and petitioner was arrested on 2‑2‑1998. He has referred to the order‑sheet starting from 19‑2‑1998 till today and submits that in spite of lapse of one year four months and twenty‑eight days the trial has not concluded, that during this period of one year, four months and twenty‑eight days, adjournments have been sought by the accused/petitioner which cover a period of 4 months and 8 days, that even if the said period of adjournment is excluded, even then accused petitioner has been in jail for one year and 'twenty days, that as such he is entitled to the relief provided under 3rd proviso to section 497(1), Cr.P.C. In support of his contention he has relied upon Shaukat Ali v. Ghulam Abbas, and others 1998 SCMR 228, Qaiser Mehmood v. The State 1996 MLD 157, Nazir Hussain v. Ziaul Haq and others 1983 SCMR 72, Muhammad Ishaque v. The State 1996 PCr.LJ 1269 (Lahore) and Ehsan Ali v. The State 1992 PCr.LJ 1511 (Peshawar). He, thus, prayed that petition be accepted and he be admitted to bail.

3. Conversely, the stand of learned counsel for the complainant assisted by learned counsel for the State is that although statutory period has expired, yet the accused/petitioner is not entitled to the relief on statutory ground, as he has been responsible for causing delay in the culmination of trial. He submitted that mathematical calculation is not to be made while computing the statutory period and has relied upon Abdur Rashid v. The State 1998 SCMR 897.

4. The accused/petitioner stands involved vide F.I.R. No.23 of 1998 dated 31‑1‑1998. He was arrested on 2‑2‑1998, and since then is in judicial lock‑up. Thus, he has been in jail for the last one year, 4 months and 28 days, as calculated by the learned counsel for the accused/petitioner. Out of the entire period of one year, 4 months and 28 days, adjournments have been sought by covering a period of 4 months and 8 days. The period of detention of accused/petitioner, as such comes to one year and 20 days, so the accused petitioner claims his entitlement to the relief of bail on statutory ground. There is no doubt that accused/petitioner has been in jail for the period referred above. However, the point which requires determination is if the delay in the finalization of trial is on account of the accused/petitioner or the position is otherwise. It is pertinent to point out that prior to the institution of present petition Criminal Miscellaneous No. 229‑M of 1999 was filed whereby a direction was issued by this Court on 25‑3‑1999 directing the trial Court to conclude the trial by 30th June, 1999. A perusal of record shows that on 12‑6‑1999 the statement of Investigating Officer was recorded but he could not be cross‑examined, as learned counsel for the accused/petitioner showed his inability to cross‑examine him. Accordingly, the matter was adjourned to 14‑6‑1999. On 14‑6‑1999 no progress could be made as the Presiding Officer was on leave and consequently case was adjourned to 17‑6‑1999. On 17‑6‑1999 the matter could not proceed due to strike of Advocates and consequently case had to be adjourned to 1‑6‑1999 (and then to 28‑6‑1999). Again it is stated by the learned counsel for the accused/petitioner that he has filed revision petition against the order of rejection of his application moved under section 540, Cr.P.C. vide order dated 27‑5‑1999 and The final order has been stayed by the revisional Court. Now this being the factual position, the accused/petitioner cannot be allowed to reap the benefit of his own adjournments which are being sought on one ground or the other.

5. So far as the authorities relied upon by the learned counsel for the petitioner are concerned, suffice it to say that authorities reported in 1996 PCr.LJ 1269, 1996 MLD 157 and 1983 SCMR 72 have been disapproved in the authority reported as 1998 SCMR

897. Again after adverting to the provision of third proviso to section 497(1), Cr.P.C. it has been held in the said authority 1998 SCMR 897 as follows:

"However, bail under 3rd proviso (ibid) can be certainly refused to accused on the ground that delay regarding conclusion of trial had been caused on account of any act or omission of the accused or any person acting on his behalf. Now adverting to the facts of this case, it is quite apparent that the counsel for the petitioner obtained adjournments on 22‑9‑1997,16‑10‑1997,29‑10‑1997, 19‑11‑1997, 18‑12‑1997 and 5‑1‑1998 as per the order sheet available on the record when prosecution witnesses were in attendance. Therefore, petitioner is not entitled to avail the benefit of 3rd proviso to section 497, Cr.P.C. Both the Courts below have correctly constructed the legal position. There being no illegality or infirmity in the impugned judgment, petition is dismissed."

6. Now according to the facts of this case, it is also apparent that the counsel for the petitioner obtained adjournments on 13‑6‑1998, 16‑6‑1998, 13‑7‑1998, 27‑7‑1998, 7‑9‑1998, 1‑3‑1999, 4‑5‑1999, 10‑5‑1999, 20‑5‑1999, 9‑6‑1999 10‑6‑1999, 12‑6‑1999, 14‑6‑1999, 21‑6‑1999 and 28‑6‑1999, as per order sheet of the trial Court and case could not proceed.

7. The upshot of above discussion is that delay in finalization of trial as per direction of this Court, is mainly attributable to the accused petitioner, so he is not entitled to avail the benefit of 3rd proviso to section 497(1), Cr.P.C. Consequently, petition fails and is hereby dismissed. N.H.Q./M‑1149/L ?????