2000 PLP 12 (MLD)

ZAFAR PASHA CHAUDHRY, J.‑‑‑The petitioner seeks post‑arrest bail in a case registered vide F.I.R. No. 98 of 1997, under section 302/324/ 148/149, P.P.C. with Police Station Tatlayali, District Gujranwala on 30‑3‑1997, wherein he is facing trial in the Court of learned Judge, Suppression of Terrorist Activities, Gujranwala.

2. Bail is sought on the ground that the petitioner was arrested on 31‑5‑1997 and is in the judicial lock‑up for more than two years but his trial could not be concluded, as such he has earned a right on the ground of statutory delay under the third proviso to section 497, Cr.P.C. Although some other grounds have also been taken in the application, yet none of them was urged or pressed during the course of arguments. The main stance taken by the learned counsel is that even if some adjournments have been obtained by the petitioner or his co‑accused, the same cannot disentitle him to the concession of bail on the ground of statutory delay because if an adjournment is sought before the framing of the charge, that cannot be treated as detrimental to his claim for grant of bail on the ground of statutory delay. In support of his contention he has placed reliance on Panjal v. The State (1990 PCr.LJ 2051) wherein it was observed that "unless charge is framed, no delay in trial can be attributed to the accused person even if he had sought certain adjournments". The cited case does not help the petitioner firstly on the factual plane. The petitioner obtained adjournment to present his counsel in court even at the time of framing of charge, on 15‑2‑1999 adjournment was sought on the ground that charge should not be framed as their learned counsel was not available. Subsequently as well, some adjournments were obtained on similar grounds. The petitioner cannot be permitted to approbate and reprobate. Had his counsel been present on 15‑2‑1999, the charge would have been framed and the trial would have commenced. If adjournment was obtained by the petitioner to produce his lawyer, then it does not lie in his mouth to argue that although delay is caused, the same may not be computed to his detriment. The cited authority, therefore, does not help the petitioner.

3. The basic principle embodied in third proviso to section 497, Cr. P.C. is that if delay in conclusion of the Trial is caused by an accused person, he cannot derive benefit out of such a delay and cannot claim the concession of bail. The authoritative pronouncement made by the Hon'ble Supreme Court is contained in the judgment reported as Abdur Rashid v. The State (1998 SCMR 897) wherein it has been laid down that: "Where for any reason accused or his authorised agent which necessarily includes the advocate engaged for defence causes delay, protection contained in third proviso to section 497(1), Cr.P.C. cannot be invoked while ascertaining cumulative effect of ultimate delay in disposal of the case, it would not be merely mathematical calculation of excluding such days for which adjournment was obtained by the accused or his counsel." It was further held that: "Bail under third proviso to section 497(1) can be certainly refused on the ground that delay in conclusion of trial had been caused on account of any act or omission of the accused or any person acting on his behalf." It clearly demonstrates that the word employed in the third proviso is not only "act" but includes "omission" as well. If an accused person omits to produce his counsel and as such obtains an adjournment, then delay caused as such would be attributed to him. As in the instant case the case was fixed for framing of charge but the same was obstructed by making a request that the accused persons desire to produce their counsel before framing of charge. The delay obviously has been caused on account of non‑production of the lawyer who is necessarily the authorised agent of the petitioner. In the above‑refer authority, the following judgments were disapproved:‑‑ (1) Muhammad Sadiq and others v. Sate (1996 P Cr.LJ 1440): (2) Qaisar Mehmood v. The State (1996 MLD 157): (3) Haji Javed Ahmad and another v. The State (PLD 1997 Kar. 156): (4) Liaqat Aii v. The State (1997 MLD 1667) and (5) Aamar v. The State (1991 PCr.LJ 534). All the judgments in substance laid down that the time consumed during adjournments obtained by or on behalf of the accused may be deducted while calculating the time period of two years. The intention of the Legislature which obviously spells out from reading of the section is, that the trial in a criminal case should be completed expeditiously because every accused person has a right of speedy trial. It does not in any manner employ that a period of limitation had been prescribed and after the lapse of that period, a right is conferred on an accused person to seek bail. The legislature in its own wisdom by taking into consideration the prevailing situation considered that a trial in a murder case should normally be completed within a period of two years and if the same is not done, then the delay of two years in a case punishable with death, was treated as unconscionable which would amount to abuse of process of law. Therefore, an accused person who is not otherwise disqualified to this concession was held to be entitled to bail. However, if the delay in conclusion at any stage of the trial is caused by an accused person or any of his authorised agent then he is deprived of the concession permitted by third proviso to section 497 (1), Cr.P.C. For e.g. an, adjournment is sought on the date of hearing when the prosecution evidence was in attendance and another adjournment is ranted for 10 days, then it will not lie in the mouth of the accused to argue that the period of 10 days may be deducted while calculating the delay because if the accused person would not have obtained adjournment, then the trial would have concluded or a major headway could be made towards its conclusion. It is, therefore, not a mathematical calculation. Similar view has been expressed in the following cases referred to by their lordships of the Supreme Court in Abdul Rashid's case (supra):

4. The nutshell of the above discussion is that delay in conclusion of the! trial is definitely attributable to the present petitioner, therefore, in our view he is not entitled to concession of bail on the ground of statutory delay. The petition is, therefore, dismissed. However, the learned trial court will see that the trial is concluded expeditiously without any unnecessary delay. Q.M.H./M.A.K./M. ;06/L Bail refused. 2000 M L D 15 [Foreign Exchange Appellate Board, Lahore] Before Tassaduq Hussain Jilani, J EAST WEST TRADING COMPANY and another‑‑‑Appellants versus STATE BANK OF PAKISTAN and another Respondents Appeal No. 12 of 1998, decided on October 998 (a) Foreign Exchange Regulation Act (VII of 1947) ‑‑‑‑Ss. 12(1)‑‑Appeal before Foreign Exchange Appellate Board‑‑‑Failure of exporter to repatriate the sale proceeds of exported goods within the specified period declared by it in Form E‑‑‑Exporter had not produced any sale proceed realization certificate issued by the concerned Bank evidencing repatriation of sale proceeds of the exported goods‑‑‑Effect‑‑‑Contention of exporter that it had been making bona fide efforts for repatriation of sale proceeds being a question of fact required some evidence before the Adjudicating Officer‑‑‑Foreign Exchange Appellate Board, in absence of any material on record indicating bona fides as claimed by exporter, could not raise presumption of bona fides in favournot lie in the mouth of the accused to argue that the period of 10 days may be deducted while calculating the delay because if the accused person would not have obtained adjournment, then the trial would have concluded or a major headway could be made towards its conclusion. It is, therefore, not a mathematical calculation. Similar view has been expressed in the following cases referred to by their lordships of the Supreme Court in Abdul Rashid's case (supra):

4. The nutshell of the above discussion is that delay in conclusion of the! trial is definitely attributable to the present petitioner, therefore, in our view he is not entitled to concession of bail on the ground of statutory delay. The petition is, therefore, dismissed. However, the learned trial court will see that the trial is concluded expeditiously without any unnecessary delay. Q.M.H./M.A.K./M. ;06/L Bail refused.