1990 P Cr (PLP)

Bail is sought in this case under the third proviso to section 497(1), Cr.P.C. Hereuoder section 497(1) is reproduced in extenso: ‑‑‑

497. When bail may be taken in case of non‑bailable offence: (1) When any person accused of any non‑bailable offence is arrested or detained without warrant by an officer‑in‑charge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years: ‑ Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail: Provided further that a person accused of an offence as aforesaid shall not be released on bail unless the prosecution has been given notice to show‑cause why he should not be so released: 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, direct that any person shall be released on bail‑‑‑ (a) who, being accused of an 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 or to a person who in the opinion of the Court, is a hardened, desperate or dangerous criminal."

2. The contention of Mr. Aftab Ahmed Akhund is that on the expiry of a period of two years from the date of detention, if the offence involves capital punishment, an accused is entitled, as of right, to grant of bail and such period having elapsed here, the accused be enlarged on bail in these proceedings.

3. On the factual plane, the two accused are said to have been arrested, on 29‑1‑1986, in the context of offences under sections 394, 302, 34, P.P.C. and section 17(3) of Hudood Ordinance, 1979 and, as such, it is urged that over three years have elapsed since such arrest resulting in an entitlement for grant of bail under the third proviso to section 497(1) ibid. It is, however, to be noted that the entitlement to claim bail under the foregoing provision is subject to an exception and the entitlement does not arise where the Court `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. Mr. Aftab Ahmed Akhund has argued that in cases where the delay, if any, caused by or on behalf of the accused, has been so caused in good faith and in the normal exercise of the right of defence such delay is immaterial and is not to be reckoned for computing the period of two years aforesaid. It is agreed at the bar that three periods of delay in such proceedings are involved, the first comprising of a duration of four months during which six adjournments were sought by and on behalf of the accused. The second such period involves the time between 7‑11‑1986 to 2‑5‑1987, during which the accused had applied for transfer of the case from the file of Mr. Mujibullah Siddiqui before whom the case was proceeding, which proceedings came to a halt on account of such attempted transfer, which itself was aborted as in the meantime, the Judge himself was transferred. This period is of 5 months, 9 days duration. Another similar period was occasioned on the basis of a constitutional petition filed by the accused or transfer of the case from the same Judge, as the case had again been made over to him. The last mentioned transfer had been sought on invocation of the constitutional jurisdiction of this Court where a stay was granted and these proceedings remained pending from 29‑8‑1987 to 8‑3‑1988, namely, a period of 6 months and 9 days but became infructuous as the learned Judge, in the meantime, Gras t ;ken 1q) as a Member of the Income‑tax Tribunal. It is maintained that these periods of time which aggregate 15 months and 18 days should not be considered at all and in fact be counted towards the statutory period envisaged in the 3rd proviso and the accused be granted bail as a matter of right.

4. Reliance for the foregoing is placed on the case of Dur Muhammad v. The State P L D 1983 Lah. 24 where Ghazanfar Ali Gondal, J., came to the conclusion that ~f any period of time is lawfully and bona fide consumed by the accused such period Is to be included in the overall permissible time of two years, and such an enunciation is based on the principle that laws are to be interpreted to suppress the mischief and to advance the remedy.

5. It appears to be necessary in such context also to refer to the cases reported as Akhtar Abbas v. The State P L D 1982 SC 424, Nazir Hussain v. Ziaul Haq and others 1983 SCM R 72, Saleh Muhammad v. The State 1983 S C M R 341, Shouki alias Shaukat and another v, The State 1984 S C M R 613, Shaukat Ali Mirza v. The State 1984 CMCR 1508. Muhammad Yousaf v. The State 1986 P Cr. L J 1246 and Muhammad Hashim v. Nabi Dad and another P L D 1987 Quetta 194.

6. In the first of these cases namely that of Akhtar Abbas decided on 26‑2 1980, a full Bench of the Honourable Supreme Court, comprising of Anwarui Haq, C.J., Muhammad Haleem and Karam Ellahi Chauhan, JJ., in relation to the entitlement for bail under the third proviso ibid was pleased to observe: In such a case it does not appear to be the intention of the law to calculate the amount of delay caused by the defence. All that is necessary is to see whether the finalization of the trial has, in any manner been delayed by an act or omission on the part of the accused. In the present case the delay is partly attributable to the accused. On facts, 8 adjournments involving a period of 3 months on the part of the accused, were not countenanced and a total period of detention exceeding 3 years was held not to qualify for the right under the third proviso

7. In the case of Nazar Hussain, MA. Zullah, J., who spoke for the Full Bench, the other Honourable Judges being Nasim Hasar, Shah and Shafi‑ur Rahman, JJ., was pleased to observe that the matter of grant of bail under subsection (1) of section 497, Cr.P.C., before the amendment, on account of delay, was in the discretion of the Court. Such discretion was taken away through the insertion of the third proviso and grant of bail was mandatory, if period specified and the circumstances, mentioned in the proviso stood satisfied. Pointed reference was made to the word may used in the first proviso as distinguished by the use of the word `shall' in the third proviso in such context. The Court, however, was further pleased to point out that, in view of the insertion of the third proviso, bail could not be granted on account of delay unless the conditions of such proviso were satisfied.

8. Saleh Muhammad's case, where the Supreme Court Bench consisted of Muhammad Haleem, CJ., Shafi‑ur‑Rahman, Zafar Hussain Mirza, and M.S.H. Qureshi, JJ., and where Zaffar Hussain Mirza, J., authored the views of the Court, followed Nazar Hussain's case. Bail granted by this Court, in anticipation of apprehended delay, was cancelled but, significantly, the intervening period of interruption in the continuous detention due to the accused being on bail, was directed not to be taken into account, if, in due course, the accused became entitled to the benefit conferred by the third proviso.

9. In the case of Shouki alias Shaukat, decided on 11‑1‑1984, a full Bench of the Supreme Court comprising Muhammad Haleem, CJ. SA. Nusrat and Zaffar Hussain Mirza, JJ., painstakingly examined a single instance of delay, explained that delay caused by a co‑accused was not relevant and allowed bail. Such bail was, however, disallowed to the co‑accused.

10. In the case of Shoukat Ali Mirza, decided on 8‑1‑1980, Dorab Patel, J., who sat in the case with Muhammad Haleem, J., as he then was, took note of the fact that while the accused had remained in custody for more than the prescribed two years but he himself was involved in delaying the hearing on five occasions, still the period of internment, minus the delay, would exceed two years and as the learned Advocate‑General was unable to give any assurance as to when the case would be heard, the delay in prosecution was found to be unconscionable and the accused entitled to bail. In this case the ratio decidendi seems to be based on the indifference of the prosecution to accord mandatory priority to expeditious progress of the trial.

11. In the case of Muhammad Younus, which is from Sind jurisdiction, my learned brother Tanzil‑ur‑Rehman, J., taking note of the cases of Akhtar Abbas and Shoukat Ali Mirza, ibid, preferred to follow the former and disallowed any indulgence or deduction for delay to the accused occasioned by himself as the case of Akhtar Abbas was later decision in time and of a larger Bench of the Honourable Supreme Court.

12. Muhammad Hashim's case, from Quetta jurisdiction, is a decision of Ajmal Mian, J., as he then was. Law it enunciates is that while considering the availability of the third proviso, it is to be seen whether the conduct of the accused seeking the benefit of the said proviso is such as has caused delay in the finalization of the trial for unjustified reasons and, if that be so, the Court may decline to press into service such proviso. However, where the delay is not unjustified, the same may be adjusted in computing the prescribed period.

13. It seems to me that the language of the third proviso is clear arid does not postulate the emergence of a right to seek bail if `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. It would thus follow that if, for any reason, the accused is himself found to be instrumental in delaying the proceedings the right contemplated under the third proviso to section 497(1), Cr.P.C. would not mature for mandatory grant of bail. Indeed, in all humility and respectfully subscribing to the view of the Supreme Court in the case of Nazir Hussain v. Ziaul Haq and others 1983 S C M R 72, 1 would venture to add that the provision is so pre- emptory and basic that unlike the cases falling in the main subsection and the first proviso the power of Court is exerciseable even without notice to the State, though, practice has‑ since developed of issuing such notice. But, then in order that such right should emerge it is essential that the conditions specified be satisfied and one of the conditions is that the accused should not be a contributory to delay. Here, it must be emphasized that delay on account of adjournments or, for that matter, any other unjustified cause does not remain restricted to the period directly involved namely, that comprised in the adjournment etc., but has an overall effect providing cause, in many cases, for contributory delays, subsequently arising, on the part of the prosecution, as well. On principle, even a single instance of delay, on the part of the accused, therefore, may take the case out from the purview of the third proviso altogether and a bail application may merit dismissal without any further enquiry. The cases decided as Akhtar Abbas v. State, Saleh Muhammad v. State and Muhammad Yousuf v. State are, therefore, precedents for and reflect the pure and simple principles dilated upon above which emerge from legislative dispensation under the third proviso to subsection (i) of section 497, Cr.P.C. and I respectfully follow and subscribe to the same.

14. Be that as it may, where several judgments of the superior Courts and, particularly, of the Supreme Court on a question of law cover the field, an effort is to be made to reconcile the dicta and arrive at a conclusion, as far as may be, according harmonious construction to all but without, in any way, detracting from any binding declarations. Applying these rules of interpretation to the decisions herein above noted, the law seems to be as laid down in the case of Akhtar Abbas, that the slightest possible delay attributable to the accused takes the case out of the third proviso to section 497(1), but a principle of condonation has been evolved as reflected in the dicta in re: Shouki alias Shoukat, Shoukat Ali Mirza, Saleh Muhammad and Muhammad Hashim to the effect that an accused may be relieved from the consequences of his delaying conduct provided always that the delay on his part was not unjustified, was in good faith and the prosecution, on C the other hand, was not oblivious of its own responsibilities implied in the legislation of the third proviso aforesaid. In such situation and such situations alone the accused, at the discretion of the Court, may be relieved of the pains of his own delay but then, even so, no simple arithmetical yard‑stick merely to exclude the apparent delay occasioned by the accused can be resorted to for delay can and does have overlapping and transcending ramifications. Each case, for according relief, shall, thus, have to be decided on its own facts.

15. Even on the basis of the foregoing concept of condonation the view expressed in the case of Dur Muhammad v. The State P L D 1983 Lah. 24, cannot withstand the impact of the enunciations of the Honourable Supreme Court and the delay, if any, on the part of the accused, however, justifiable it may be, cannot be counted or reckoned as part of the prescribed period under the third proviso aforesaid.

16. Adverting to the facts of this case, it is to be noted here that an earlier application for grant of bail was made under the third proviso to section 497(1) to this Court, having itself been occasioned on account of refusal of the learned Vth Additional Sessions Judge (Hadood) Hyderabad, dated 19‑6‑1988. This application was rejected by an order dated 27‑10‑1988, of my learned brother Abdul Rasool Agha, S., whereby, due to bulk of evidence having been examined and only the doctor and the Investigating Officer remaining, an observation was made that the case be disposed of, as early as possible.

17. Ordinarily, in view of the judgment of the Supreme Court of Pakistan in the case of State v. Zubair and 4 others P L D 1986 SC 173 and other dicta this case should have been heard by the same learned Judge, who passed the earlier order rejecting the bail application. Learned counsel, however, from both sides have relied on a recent decision of my learned brother Mamoon Kazi, J. in the case of Roshan and another v. The State 1989 P Cr. L J 609 where the Supreme Court decision in Zubair's case has been distinguished and it has been observed that the necessity of hearing of a bail application by the same Judge of the High Court would arise only where subsequent application is based on merits but where the later bail application is founded on the entitlement occurring under the third proviso to subsection (1) of the section 497, it is an altogether different matter and may be heard by another Judge, if the same Judge is working at another Bench of the Court or it is otherwise inconvenient to place the case before him. It is, undoubtedly, a very sound distinction and I find myself in complete agreement with the view of my learned brother Mamoon Kazi, J., in this behalf. It is, however, to be observed that in this case the referred order of Abdul Rasool Agha, J., was under the third proviso to subsection (1) of section 497 itself and a question, therefore, may arise whether the principle laid down in Zubair's D case ibid would still, not apply. On closer examination of the problem, I find that the opinion of Mamoon Kazi, J., in Roshan's case would equally be applicable in this case since, at any event, the exercise under the third proviso to section 497(1) is never an exercise on merits and, therefore, as the initial order would not involve merits, the subsequent order may not be subject to the restriction spelled out in Zubair's case ibid.

18. Taking up this application for disposal now, as my learned brother Abdul Rasool Agha, J., is presently stationed at the principal seat of the Court the contention advanced is that even after the order of this Court, dated 27‑10‑1988, the case against the applicants has not proceeded and, therefore, the entitlement under the third proviso to subsection (1) of section 497, Cr.P.C., should be resorted to and notwithstanding the periods of time consumed by the applicants, as referred to in the earlier part of this order, they should be released on bail. I am of the view that the matter is not as simple as all that. Even if the case had not proceeded, as required by this Court, the proper course should have been for the applicants to apply before the learned trial Court, which was seized of the case, enabling that Court to consider the overall entitlement, if any, of the applicants under the third proviso and in that context the delay, if any, subsequent to the order of this Court dated 27‑8‑1988, could be considered. This can be done even now. I would, therefore, decline to by‑pass the jurisdiction of the trial Court and leave the applicants to move that Court which, in turn, would primarily proceed with the case in compliance with the referred order of this Court and if the applicants move under the third proviso aforesaid, consider the matter in the entire perspective on the basis of the principles dilated upon in this order. In this context, it will have to be seen that, on many occasions, delay is not one sided and there may be more than one factors involved in each stage of proceedings, where delay has occurred. A close analysis is to be made and the principles deduced, as above: 1w\"to be applied with all care and caution, which I have no doubt will be done at the. level ,,f the trial Court, if and when occasion arises. As a mention was made that the learned Presiding Officer is not available to proceed with the case, fie having gone for Sharia Course, copies of this order will, immediately, be sent to the learned Sessions Judge, Hyderabad and the Secretaries, Law and Home Departments, Government of Sind, to take necessary steps for remedying that situation. With the foregoing observations, this application is, for the present disallowed. N.H.Q./B‑139/K Application disallowed.