P L D 1992 Peshawar 95 (PLP)

‑‑‑‑S., 497‑‑‑Penal Code (XLV of 1860), S. 302/34‑‑‑Bail, grant of‑‑‑Accused had remained as under‑trial prisoner for a continuous period of about 28 . months while his trial had not concluded as yet‑‑‑Accused was charged only for vicarious liability as having accompanied the principal accused and to have : opened a single ineffective fireshot at the deceased‑‑‑No recovery of empties, bullets and blood‑stained earth had been effected from the spot‑‑‑Occurrence had taken place in darkness and eye‑witnesses were closely related to deceased‑‑‑Accused was admitted to bail in circumstances. Yousaf Shah for Petitioner. Khalid Khan, Asstt. A.‑G. for the State. Sher Afgan for the Complainant. Date of hearing: 13th November, 1991. After scrutiny of the record and hearing learned counsel for the parties it was found that herein accused‑petitioner has not. applied for bail under the 3rd proviso to subsection (1) of section 497, Cr.P.C. only but in paras. 5 to 8 of his application he has also requested for bail on merits stating that he was only charged for ineffective firing; nothing was recovered from the spot, so much so that blood earth was not recovered; the occurrence took place in darkness and as such the identification was not possible and last that there was no disinterested eye‑witnesses' evidence available in the case. The learned Additional Sessions Judge refused him a bail under the third proviso to subsection (1) of section 497, Cr.P.C. and did not adhere to the merits' side of the case in his impugned order for which he is cautioned and advised to be careful in future.

2. Now reference is made to the order‑sheets dated 14‑2‑1990,15‑7‑1990, 5‑12‑1990 and 3‑3‑1991, which adjournments were allegedly caused at the instance of the accused. Order sheet dated 14‑2‑1990 reports that the learned defence counsel has made a request for the examination of Medical Officer after the examination of the eye‑witnesses. On the day some three P.Ws. were examined while some P.Ws. were not in attendance who were summoned for the next day. This adjournment cannot be considered caused solely by the act or omission of the accused as to discredit him. On 15‑7‑1990 two P.Ws. were examined while one doctor , was in attendance but he was sent back unexamined as his evidence was interlinked with another doctor who was not in attendance. Allauddin and Khatimuddin P.Ws. were present but they were not examined at the request of the learned counsel for the defence due to his pre occupation. This adjournment may, no doubt, be used as against the accused. On 15‑12‑1990 the case was, however, adjourned at the request of the learned counsel for the parties. On 3‑3‑1991 adjournment was again caused due to the request of the learned counsel for the parties. These two adjournments cannot be used to the discredit of the accused as to penalize him. We have thus been left with the adjournment dated 15‑7‑1990 and partly adjournment. dated 14‑2‑1990 to discredit the accused therefor. Adjournment dated 15‑7‑1990 occasioned as such was for about two months .while adjournment dated 14‑2‑1990 was for one and a half months. Here again a question will arise that under section 344, Cr.P.C. the Court can adjourn an enquiry or trial by order in writing stating the reasons therefor on suitable terms for such time as it considers reasonable. There has, however, been placed an embargo on the power of a magistrate to remand an under‑trial prisoner to custody under this section for a term exceeding 15 days at a time and thus he cannot adjourn the case of an under‑trial prisoner exceeding 15 days. There is no such bar for a Court of Session as a trial Court to remand an under‑trial prisoner to custody' for a term exceeding 15 days and as such he may adjourn the case for a term exceeding 15 days. Nonetheless Court of Session has to postpone or adjourn the case on suitable terms for a reasonable time (underlining is mine) and this reasonable time in case of a trial of an accused in custody is to be the shortest possible time and by analogy not exceeding 15 days. Reference is made to section 265‑F, Cr.P.C. which contemplates that the Court of Session shall proceed to hear the complainant (if any) and take all such evidence which may be produced in support of the prosecution and shall earlier ascertain from the Public Prosecutor or from the complainant, the names of the persons of the prosecution witnesses to give evidence for prosecution who shall be summoned to give evidence before it. After the commencement, Session trial is to proceed from day to day unless a longer adjournment becomes necessary and such adjournment shall be for a reasonable time. Thus as and when an accused is to be discredited for the delay in his trial on account of an adjournment occasioned for his act or omission or any other person acting on his behalf under the 3rd proviso to subsection (1) of section 497, Cr.P.C. the delay in the e trial on account of such adjournment shall be counted to his discredit in a reasonable time and I would say maximum 15' days because the longer adjournment has presumably occasioned due to the exigencies ' and expediencies of the Court.

4. Coming to the facts of the case, accused‑petitioner has remained as, under‑trial prisoner for a continuous period of about 28 months while his trial f for the offence punishable with death has not concluded as yet. Even to discredit him for the delay in the trial for one and a half adjournment of about three months he would still be entitled to bail under the 3rd proviso to subsection (1) of section 497, Cr.P.C. provided the 4th proviso which is in fact a proviso to the 3rd proviso does not stand in his way as he is not a previously convicted offender or a hardened, desperate or dangerous criminal There has not come forth evidence on record to cover his case by the 4th proviso, rather he is a person charged for a vicarious liability as having accompanied the principal accuses and to have opened a single ineffective fireshot at the deceased. .

5. Accused‑petitioner was also found to make out a case on merits for want of recovery of empties, bullets and blood‑stained earth from the spot, occurrence taking place in darkness and the eye‑witnesses cited to be the close relations of the deceased.

6. In view of the foregoing discussion, this Court would accept the application and order the release of the accused‑petitioner on furnishing bonds in the sum of Rs. 50,000 (Fifty thousand) with two sureties each in the like amount to the satisfaction of the trial Court. N.H.Q./ 1337/P Bail allowed.