1996 PLP 157 (MLD)

Courts started taking the view that in case the delay in conclusion of trial of an accused person was perverse and scandalous it could then be seen as an abuse of the process of law and a negation of the machinery of justice. This view flows from the established old English Common Law principle "justice delayed is justice denied". Nonetheless, this was an area in which there was no black or white and can, therefore, be described as a gray area. There were no guidelines as such, no schedule nor time‑table. Courts had to decide the matter of grant or refusal of bail on the ground of delay on a case to case basis. This uncertain scenario continued till such time that the law‑makers in their wisdom thought that it was necessary in the interest of justice, equity and clarity that a criteria be laid down by giving a definite schedule and hence the provisos were introduced by the Law Reforms Ordinance of 1972. The 3rd proviso to subsection (1) of section 497, Cr.P.C. provides that: ‑‑‑ "Provided further that the Court shall, except where it is of opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf or in exercise of any right or privilege under any law for the time being in force, direct that any person shall be released on bail:‑‑‑ (a)???????????????.. (b).who, being accused of an offence punishable with death, has been d tamed for such offence for a continuous period exceeding two years and whose trial for such offence has not concluded: Provided further that the provisions of the third proviso to this subsection shall not apply to previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal or involved in terrorism."

9. A bare reading of the abovementioned proviso, clearly indicates that a right has been created by the law in favour of very accused person. However, it is not an unbridled right but is subject to certain constraints which may even be considered as exceptions. The first limitation placed upon the right is that if in the opinion of the Court the delay in the conclusion of trial has been occasioned by the accused person or by another person acting on behalf of the accused then the Court may withhold the right created in favour of the accused. Second exception to the rule is that where the accused person is a previous convicted offender for an offence punishable with death or imprisonment for life and the third exception is where in the opinion of the Court a person is a hardened, desperate or dangerous criminal. Last and the fourth exception is where an accused person is involved in terrorism.

10. There is little doubt that a counsel for an accused person is a person acting on his behalf within the meaning of the 3rd proviso to subsection (1) of section 497, Cr.P.C. This established legal position leads to yet another specific question, whether in the computation towards the statutory period for the purposes of 3rd proviso the time spent by a counsel for an accused by seeking and obtaining adjournments can be said to be an act or omission of the accused which has occasioned the delay in conclusion of the trial?

11. Unfortunately there seem to be different and even conflicting views on this spec question. 12.Learned counsel for the State submits that the answer to this specific question is in the affirmative and places reliance upon the cases of Nawab Ali v. The State reported in PLD 1991 Pesh. 42 and Akhtar Abbas v. The State reported in PLD 1982 SC

424. It is the case of the learned counsel for the State that any period spent by a counsel of the accused must necessarily be deducted in computation towards the minimum statutory period of 2 years mentioned in the 3rd proviso to subsection (1) of section 497, Cr.P.C.

13. Learned counsel for the petitioner has referred to cases which have taken contrary view and wherein the ratio decidendi is that for the purpose of 3rd proviso to subsection (1) of section 497, Cr.P.C. an accused person cannot be penalized on account of an act or omission of a counsel acting on his behalf. In this context learned counsel for the petitioner places reliance upon the following cases: ‑‑‑ (1) Muhammad Yousuf v. The State 1992 MLD 1814 (Karachi); (2) .Khalid v. The State 1994 PCr.LJ 12; (3) Amir v. The State 1991 PCr.LJ 534 (Karachi) and (4) Zahid Hussain Shah v. State PLD 1995 SC 49

14. The matter of accepting or refusing a request for the grant of an adjournment by learned members of the Bar is essentially a matter between the Bar and the Bench. While it is necessary and essential for the safe administration of justice to give utmost accommodation to the learned members of the Bar yet at the same time it is also necessary in this context for the Courts not to indulge in judicial extravagance by granting an adjournment whenever a request to that effect is made. It is also necessary for the safe administration of justice to strike balance in this matter. However, whenever a genuine request for an adjournment is made by an honourable member of the legal profession, there is no reason why it should not be granted by a Court. But I cannot think of any reason why an accused should be made to suffer in this whole process and why should a right be denied to an accused person which has been granted to him by the law.

15. The Constitution of the Islamic Republic of Pakistan, 1973, guaranteed certain fundamental rights to every citizen of Pakistan in Chapter II of the Constitution. Article 10 provides that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice. Article 15 guarantees freedom of movement for every citizen. These fundamental rights are based on the concept of a fair trial. Every person who is an accused of an offence is entitled to a fair trial. Concept of fair trial necessarily proceeds on the premise that a trial without inordinate delay shall be held. It is not the policy of the law in a democratic civilized society to hold people to languish in jails which are notoriously overcrowded indefinitely without a trial. In my view it would be i unfair to withhold a right from a citizen because of an adjustment or an, accommodation given to his counsel. However, this is not to say that the Courts are to act as calculating machines. Courts still have discretion in this i context, where for example an accused person has been an absconder, he cannot claim the benefit of the 3rd proviso on the basis of this own abscondence.

16. In the instant case although the petitioner has continuously been in jail I for more than 2 years, the trial has not even commenced while the law provides that it should have concluded within 2 years. Delays of over 2 years in the commencement of a trial are now becoming quite common and are indeed a sad commentary.

17. I think it is the time to do some serious thinkings in this matter. 18. 1 am of the considered opinion that the petitioner is entitled to the benefit of the clause (b) of the 3rd proviso to subsection (1) of section 497, Cr.P.C. ?? I

19. Resultantly, the petitioner is granted bail provided he furnishes bail bond in the sum of Rs.50,000 with one surety in the like amount to the satisfaction of the trial Court. N.H.Q./Q‑41/L??????????????????????????????????????????????????????????????????????????????????????????????? Bail granted.