1995SCMR1087 (PLP)

Malik Rab Nawaz Noon, Advocate Supreme Court instructed by Khan Imtiaz Muhammad Khan, Advocate‑on‑Record for Petitioner. Raja Abdul Ghafoor, Advocate Supreme Court for the State. Date of hearing: 9th March, 1994. ABDUL QADEER CHAUDHRY, J‑‑‑Leave to appeal has been sought against the order of the High Court dated 7‑2‑1994, whereby it recalled the order of bail granted to the petitioner by the learned Additional Sessions Judge, Rawalpindi.

2. The facts in brief are that the petitioner is facing the trial under section 302, P.P.C. before the learned Sessions Judge, Rawalpindi. He moved an application for grant of bail on the ground of delay. The learned Additional Sessions Judge admitted his bail on the ground that two years have elapsed but the trial was not concluded. An application for cancellation of bail was moved' before the High Court. The learned Single Judge, by means of the impugned order, set aside the order of the learned Additional Sessions Judge on the ground that the provisos 3rd and 4th stood omitted from the Statute, as such this ground was not available to the petitioner at the time of passing of the bail order. The High Court further held that the petitioner was responsible for delay of the trial.

3. The learned counsel for the petitioner has submitted that he was entitled to bail, as the trial had not concluded within the period of two years. He has submitted, that proviso 3rd and 4th would be applicable to the case of the petitioner. The petitioner was in the judicial lock‑up since 1990; he was admitted to bail by the learned Additional Sessions Judge on 20‑5‑1993, therefore, the order is just and proper and the repeal does not affect to the pending proceedings. The learned counsel has referred to Government of Punjab v. Ziaullah Khan (1992 SCMR 602) wherein it has been observed that the repeal by virtue of the Constitution shall not affect the previous operation of the law. He then referred to Adnan Afzal v. Sher Afzal (PLD 1969 SC 187), which laid down that a procedural statute has to give effect retrospectively. We need not dilate upon the application of 3rd and 4th provisos. In view of the fact, the petitioner is not entitled to the concession of bail even under the above proviso. The learned counsel has also referred to Ashiq Hussain v. The State (1989 SCMR 392), wherein it has been observed that' delay in trial was not of the type which entitled accused to concession of bail, therefore, this case does not help the petitioner. He has further referred to Shouki alias Shaukat v. The State (1984 SCMR 613). This precedent does not support the contention of the petitioner. In this case it has been observed that act or omission of one of co‑accused who were being jointly tried would not deprive others of benefit of bail. It has been further observed that the fact that the counsel re-personating the accused is busy with other professional work and' is not available to attend trial of the accused will not ipso facto be construed justification .for delaying trial. The High Court, while setting aside the order of bail, has observed as follows:‑‑ "A perusal of the record shows that most of the adjournments were obtained by the accused side which has occasioned the inordinate delay."

4. We have perused the proceedings of the trial Court and constrained to note that the learned trial Judge adjourned the case on flimsy grounds. It is no ground to adjourn the case that the counsel for the complainant has been appointed as Additional Sessions Judge or that he has gone for his medical check‑up. The prosecution was being conducted by the public prosecutor, therefore, the case should not have been adjourned on such ground. As far as the delay on account of the accused is concerned, it is suffice to say that at least on four occasions the defence had requested for adjournment. The petitioner was not entitled to the concession of bail. This petition has no force. The same is dismissed and the leave prayed for refused. N.H.Q./M‑2231/S Leave refused.