1998 PLP 228 (SCMR)

ZIA MAHMOOD MIRZA, J.

Petitioner/complainant seeks leave to appeal against an order of Lahore High Court dated 18-12-1996 allowing bail of Ghulam Abbas and Arif Hussain respondents in a case under section 302/34/109 P.P.C. registered at Police Station Ludianwala, District Faisalabad vide F.I.R. No.402 of 1994.

2. Both the accused/respondents have been allowed bail by the High Court on the statutory ground of delay in the conclusion of the trial. The learned Judge has held "Admittedly, the petitioners are behind the bars for a period exceeding two years and trial in the case against the petitioners has not concluded thus far. " In the view of the learned Judge, the delay in commencement of trial was occasioned by the complainant who moved application in the trial Court for summoning the accused whose ~ names were placed in Column No.2 of the Challan.

3. We have heard the learned counsel for the petitioner and live also perused the order-sheet placed on the present record. It is an admitted- position that the accused-respondents were arrested on 5-11-1994 and their trial has not concluded as yet. Learned counsel for the petitioner has, however, contended that the accused-respondents were also partly responsible for the delay in the commencement and conclusion of the trial and, therefore, they were not entitled to be released on bail under the third provision to section 497, Cr.P.C. In support of his contention, learned counsel has drawn our attention to the interim orders dated 8-5-1996, 10-6-1996 and 26-6-1996 to show that on these dates, the adjournments were sought and obtained by and on behalf of the accused-respondents. On perusal of these orders, we find that by order dated 8-5-1996, case was adjourned for five days for the accused to file and on 10-6-1996 and 6-6-1996, the case was adjourned for 15 days and 24 days respectively owing to the illness of the counsel for the accused. Even if the delay caused on account of these three adjournments was excluded from the total period of detention of the accused-respondents, their case was still covered by the third Proviso to section 497 Cr.P.C. which provides, inter alia, that a person accused of an offence punishable with death shall be released on bail if he has remained behind the bars for a period exceeding two years and his trial has not yet concluded except when the delay has been caused by any act or omission of the accused or of any other person acting on his behalf. It appears that by the time, the accused-respondents were released on bail, period of their incarceration had almost exceeded two years and admittedly their trial had not concluded till then. It has not concluded even till today. Confronted with this position, learned counsel for the petitioner. sought to argue that some delay was also caused owing to the non-appearance of the accused who were placed in Column No.2 of the challan and were summoned by the Court. Learned counsel was unable to give us the exact period of delay so caused and even otherwise, the delay, if any, caused on account of non-appearance of the co-accused of the respondents could by no stretch of reasoning be attributed to the latter. Needless to observe that such delay could not be said to have been occasioned by any act or omission of the accused-respondents or any person acting on their behalf. Thus, looked at from whatever angle, no case is made out for interference by this Court. This petition is accordingly dismissed and the leave sought is refused. N.H.Q./S-18/S Leave refused.