1998 PLP 897 (SCMR)

MUNAWAR AHMAD MIRZA, J.

Facts briefly mentioned are that on 30th December, 1996, around 05-00 p.m., Abdul Majeed alongwith his maternal uncle (injured) proceeded towards his fields. On the way, near Kala Miner, they were attacked by petitioner and his companions (co-accused) who were armed with daggers and pistols. Maternal uncle of the complainant, namely, Ramzan, was waylaid and multiple injuries were caused to him by petitioner and co-accused. Injured was shifted to hospital. Later, Abdul Majeed lodged F.I.R.. No.2/97 on 1st January, 1997 under section 334/148/149, P.P.C. at Police Station 'Kala' of District Dera Ghazi Khan. Petitioner was arrested on 17th January, 1997. Bail application initially moved before Additional District and Sessions Judge, Dear Ghazi Khan was rejected on 13th September, 1997. Subsequently, petitioner sought bail merely on statutory ground claiming benefit of 3rd proviso to section 497 of the Criminal Procedure Code. Learned AD and SJ rejected the bail application vide order dated 10th November, 1997. Details given by the Court while passing said order are material for examining claim for bail, therefore, same are reproduced below:-- "Bail application after arrest filed by present petitioners Muhammad Bakhsh and Abdul Rashid was dismissed by this Court vide order dated 13-9-1997. This present bail application has been filed only on statutory ground that the trial has not been concluded. According to the F.I.R. occurrence took place on 1-1-1997 and present petitioners were arrested on 17-1-1997. Charge was framed on 6-6-1997. Witnesses were present on 31-7-1997. On that date evidence was not recorded and the next date fixed was 13-8-1997. On that date evidence was not recorded, next date was 8-9-1997 and on that date evidence was not recorded. Next date was 22-9-1997. On 22-9-1997 prosecution evidence was present but was not recorded due to non-availability of learned defence counsel. Similarly on the next date i.e. 4-10-1997 evidence was not recorded due to non-availability of the learned defence counsel and the next date was 16-10-1997. On 16-10-1997 the learned Presiding Officer was on leave and on next date i.e. 29-10-1997 members of Bar were on strike and now the next date is 12-11-1997. According to the order sheet prosecution evidence was not recorded due to non-availability of the learned defence counsel. Furthermore no statutory ground is available to the petitioners because the petitioners are not behind the bar from more than one year. In this application I see no force and the same is dismissed." Aggrieved by the above order, petitioner filed Criminal Miscellaneous No.2173-P/97 before Lahore High Court, Multan Bench. After hearing the parties, learned Judge rejected the bail application vide order dated 11th February, 1998 observing that delay in disposal was also attributable to accused/petitioner. The above two decisions have been assailed before this Court through Criminal Petition for Leave to Appeal No.26 of 1998. Syed Murtaza Ali Zaidi, ASC for petitioner, strenuously urged that the maximum punishment for the offence under section 334, P.P.C., alleged against the petitioner could extend to rigorous imprisonment for ten years as Taazir, therefore, under clause (a) of third proviso to section 497, Cr.P.C. petitioner was entitled to be released on bail as of right. He further contended that a few adjournments obtained by the counsel would not have any material effect and deny the petitioner legal right for availing concession of the abovereferred provision of law. To supplement his submission, following reported judgments were cited:--

1. Muhammad Sadiq and 2 others v. State (1996 P Cr.L.J 1440).

2. Qaisar Mehmood v The State (1996 MLD 157).

3. Haji Javed Ahmad and another v. The State (PLD. 1997 Karachi 156).

4. Liaqat Ali v. The State (1997 MLD. 1667).

5. Aamar v. The State (1991 PCr.LJ 534).

6. Shahbaz and another v. The State (1995 PCr:LJ 1682).

7. Nazir Hussain v. Zia-ul Haq (1983 sCMR 72). Sheikh Altaf Elahi, learned Additional Advocate-General, vehemently opposed the petition contending that delay in disposal of the case in the trial Court was mainly attributable to - the accused because more than five adjournments were sought by his counsel. We have-perused the record and considered the arguments in the light of case-law referred to by the counsel for the petitioner. In order to appreciate the real question in controversy about the extent of right available to the accused/petitioner for being released on bail and scope of discretion exercisable by the Court for withholding the concession, it would be appropriate to reproduce here 3rd proviso to section 497, Cr.P.C.:-- .497.

(1) . Provided that ......................................................... . Provided further 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) who being accused of any offence not punishable with death, has been detained for such offence for a continuous period exceeding one year and whose trial for such offence has not concluded; or (b) Who, being accused of an offence punishable with death, has been detained 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 a previously convicted offender who, in the opinion of the Court, is a hardened, desperate or dangerous criminal or involved in terrorism." (2) .. (3) .. (4) .. (5) .. Careful examination of this provision would clearly disclose that cases where offence is not punishable with death and accused is detained for a period exceeding one year, and trial has not yet concluded; the accused would be entitled to grant of bail except where in the opinion of tile Court delay in completion of trial was occasioned by the act or omission of accused or any person acting on his behalf. It may be seen that third proviso was promulgated through Act No.XIX/94 on 14th November, 1994. Real object of introducing abovereferred amendment appears to be an effort to ensure that criminal trials are not unnecessarily protracted. It thus created an implied obligation upon the prosecution for taking effective measures to produce evidence so that cases of accused persons facing trials concerning respective categories contained in Sub -clauses (a) and (b) of third proviso to section 497, Cr. P.C. could be finalized expeditiously and within the period stipulated by aforementioned provisions of law. Any slackness or incapacity of prosecution to conclude the prosecution side within the time frame mentioned in clauses (a) and (b), supra, will provide an advantage to the accused for being released on bail. However, exception contained in third proviso unambiguously imposes a responsibility upon the- ,. accused for ensuring that delay in disposal is not occasioned or caused one ., account of him or any person acting on his behalf. Therefore, it is crystal clear that if for any reason accused or his authorised agent which necessarily includes the advocate engaged for defence causes delay, then in such eventuality protection contained in the third proviso cannot be invoked. It tray further be noticed that 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. Factually, if the witnesses are in attendance and matter is ripe for recording evidence; but defence does not proceed with the case, it may seriously affect the prosecution because on the next date, possibly, for some or the other reason, witnesses who had in fact appeared may not attend. Therefore, if effective hearing is got postponed by the accused or his counsel, then they are bound to face entire risk and such period which may be consumed in procuring presence and examination of those witnesses who earlier appeared in the Court when adjournment was sought on behalf of accused would be important factor for considering question of bail merely on statutory ground under third proviso to section 497, Cr.P.C. We have considered the ratio decidendi in cases Amir v. The State (1991 Pakistan Criminal Law Journal 534), Qaiser Mehmood v. The State.(1996 MLD Lahore 157), M.Siddiq v. The State (1996 Criminal Cases 1713), Liaqat Ali v. State (PLD 1997 Criminal Cases Lahore 348) and Haji Javed Ahmed v. The State (PLD 1997 Karachi 156). In our opinion the observations in the afore-quoted judgments holding that adjournments sought by the counsel for the accused or accommodating granted to him by the Court should not affect the right of accused for availing benefit of third proviso to section 497, Cr.P.C. is not correct. In the above cases exception contained in the third proviso has been completely ignored and misinterpreted. We seriously apprehend that if above construction of law is allowed to hold field, there is greater likelihood of its being misused by adopting different devices and real object of incorporating third proviso (supra) would be frustrated. It is quite apparent that if delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on 41 his behalf, then the right to release under third proviso cannot be availed. (Underlining is for emphasis). The conclusions arrived at in the afore-quoted judgments are, therefore, disapproved, It may be further noticed that principle of law discussed in Shuukat Ali v. Ghulam Ali (1998 SCMR 228) has no applicability to the facts of the presem case. This Court while examining the application of 3rd proviso to section 497, Cr.P.C, in case Zahid H. Shah v. The State (PLD 1995 SC 49) had observed that right of the accused to seek bail would not be left to discretion of the Court and would be controlled by the relevant provision of law. However, bail under 3rd proviso (ibid) can be certainly reused to C 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 116-10-1997,29-10-1997, 19-11-1997,10-12-1997,18-12-1997 and 5-1-1998 as,4 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 construed the legal position. There being no illegality or infirmity in the impugned judgment, petition is dismissed. N.H.Q./A-58/S Leave refused.