1. ' This is an application under section 497, Cr, P. C. For grant of bail for an offence under section 302/34, A. P. C. Read with section 5 of the Islami Tazeerati Act. The bail is sought in view of the amendment made in section 497, Cr. P. C. Whereby it was provided that a Court shall direct that any person shall be released on bail, 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 the Court was of the opinion that the delay in the trial of the accused was not occasioned by an act or omission of the accused or any other person acting on his behalf.
2. ' The facts of the case are that a report was made by Muhammad Aslam complainant at the Police Station, Rawalakote on 17-7-1977 wherein it was alleged that the complainant and Anis, his nephew were facing trial on the charge of murder of Muhammad Sadiq. Abdul Ghafoor son of Muhammad Sadiq deceased and brothers of Abdul Ghafoor were of the opinion that the complainant. Abdur Rehman and Anis were responsible for the murder of Muhammad Sadiq and as such they had thrown a challenge to take the revenge. Muhammad Sharif, accused-petitioner, soon after the murder of Muhammad Sadiq, developed relations with Abdul Ghafoor and his family and got his son married with the sister of Abdul Ghafoor. Abdul Ghafoor was wanted in another criminal case.
3. He was absconding and was given protection by Muhammad Sharif petitioner. On the night, prior to occurrence, the complainant and his brother Abdur Rehman deceased were invited by Muhammad Rashid. They spent the night with Muhammad Rashid and next morning, that is to say, the morning of occurrence, all the three persons left for `Parat Bazar. The complainant had to attend his shop situate in Penicle Bazar, whereas Muhammad Rashid and Abdur Rehman were going to Rawalakote. The complainant and his companions arrived near Parati Bazar where they were ambushed by Muhammad Sharif and Abdul Ghafoor who were armed with '12-bore guns.
4. Muhammad Sharif opened fire on Abdur Rehman, Muhammad Rashid started running away on whom Abdul Graford fired at with his gun. Abdur Rehman and Muhammad Rashid died on spot.
5. Both the accused escaped. The occurrence was seen by the complainant and one Muhammad Nasim, vegetable vendor. Fazal Hussain and Muhammad Saleem saw the accused persons running away from the scene. It was alleged that the deceased persons were killed by the accused persons with connivance of Muhammad Sadiq, Abdur Razaq and Mst. Rehmat Jan. Abdul Ghafoor absconded and on presentation of challan, proceedings under section 512, Cr. P. C. Were taken against him. Muhammad Sadiq, Muhammad Sarwar, Abdur Razaq and Mst. Rehmat Jan were released on bail. The accused petitioner was apprehended on 19-7-1977. After the completion of investigation, the challan was submitted in the District Criminal Court on 16-11-1977. The accused persons were examined under section 242, Cr. P. C. On 9-1-1978 and after completion of prosecution evidence, they were examined under section 342, Cr. P. C. On 13-9-1979. At present the case is fixed for today in the trial Court for defence evidence.
6. ' Sardar Rafique Mahmood Khan, the learned Additional Advocate-General, pointed out that the period provided in proviso incorporated through the amendment relates to the period from the commencement of trial till its conclusion. Thus, according to the learned counsel, in case the trial was not concluded within a period of two years, the accused facing trial for an offence punishable with death was entitled to bail. The proposition of the learned Additional Advocate-General was controverted by the learned counsel for the petitioner who contended that the duration of two years shall be counted from the date of arrest of the accused and not from the date of commencement of trial.
7. ' The sole question for determination confines to the point as to whether the period of two years for completion of trial is to be counted from commencement of the trial or the date of arrest or detention of the accused in the case. It is to be noted that the amendment in question has been added in section 497, Cr. P. C. Therefore, in order to reach a safe-conclusion, the provisions of the section, as a whole, have to be examined. Section 497, Cr. P. C. Provides that when any person accused of any non-bailable offence is arrested or detained without warrant by an officer incharge of a Police Station or appears or brought before a Court, he may be related on bail, but he shall not be so released if there appear reasonable grounds for believing that he was guilty of the offence punishable with death or imprisonment for life. An exception was made, to the aforesaid provision whereby the Court was empowered to release on bail any person under the age of 16 years or any woman or any sick or infirm person accused of such an offence. The amendment in question has been incorporated as a second exception to the provision of section 497(1), Cr. P. C.
8. And by introducing the second exception, it has been made mandatory for the Court to release the accused on bail who being accused of an offence punishable with death Was detained for a continuous period exceeding two yams and whose trial wan not concluded, provided the Court was satisfied that the delay in the trial was not in consequence of an act or omission of the accused or any' other person acting on his behalf. This being so, the word 'detention' shall have to be read in conjunction with the word "arrested" or "detained" incorporated in subsection (1) of the section. Its interpretation would be made in conformity to the main provision. The object of providing an exception is to control, limit, restrict, and to qualify an enactment. By introducing the present amendment, the Legislature has placed a further restriction or, in other words, has provided an exception to the general provision whereby, in the opinion of the Court, when there appear reasonable grounds for believing that an accused person was guilty of an offence punishable with death, he could not be released on bail. In my opinion, the word 'detention' is used in correspondence and relation to the words "arrested" or "detained", used in subsection (1) of section 497.
9. ' In the case of Dayal Singh v. Kenyan Insurance Ltd. (1), it was observed as under :- "A proviso may limit and severely limit the application of an enactment to which it is a proviso but it could only be held in the most exceptional circumstances that the proviso nullifies the enactment."
10. ' In another case entitled Ewt & West Steamship Company v. Pakistan (2), Mr. Justice, A. R. Cornelius (as he then was), described the function of proviso as under :- "One of the plainest rules of statutory interpretation is that a proviso is to be regarded as something which excepts a particular case from a general principle. The effect of a proviso is to except something out of the preceding portion of the enactment or to qualify something enacted therein which but for the proviso would be within it."
11. The opinion expressed by the learned Judges in the aforesaid cases provides a guideline to hold that the amendment in the shape of proviso has been introduced by the Legislature with the intention to allots concession o bail to the accused person facing trial of an offence punishable with death who trial was not concluded within two years from the time of detention of such a accused. As mentioned earlier, section 497(1), Cr. P. C. Strictly control the powers of the Court to grant bail to an accused person in whose there appeared reasonable grounds to believe that he was guilty of a offence punishable with death or life imprisonment. Any person arrested
(1) P D 1955 P C 4 (2) PLD 1958 SC (Pat.) 41 ' or detained was immediately entitled to bail provided the offence was boilable. In non-boilable offences, the restriction for disallowing bail was placed in matters in which the punishment was death or life imprisonment This is an indication of fact that the question of bail could be considered by the Court irrespective of the fact that the trial had commenced or not. The Court was empowered to release a person on bail even at the sta of investigation. Thus, the aforesaid interpretation is in accordance with the plain meaning and expression of the provisions of the section. Therefore, the period of detention shall be counted from the date of arrest of a person. And not from the date of commencement of the trial.
12. ' As stated earlier, the accused-petitioner was arrested on the charge of murder of Abdur Rehmfin and Muhammad Rashid, on 19-7-1977. The trial has not been concluded by this time. The learned Additional Advocate-General took me through the interim orders of the trial Court and pointed out that delay for a period of one month and 27 days was occasioned due to the applications made by the accused, on 30-3-1978, 25-4-1978 and 14-9-1978. This period was to be deducted from the duration of period of detention of the accused person. After deducting the aforesaid period, it is evident that the trial of the accused-petitioner has exceeded to a period of two years. Thus, the accused is entitled to the concession of bail as provided by the present amendment.
13. ' In view of the aforesaid observations, the petition is accepted. The accused petitioner shall be released on bail provided he furnishes bail bond in the sum of Rs, 2,00,000 comprising five sureties, liable individually and collectively, with personal bond in the same amount, to the satisfaction of the District Magistrate or Additional District Magistrate, Rawalakote Poonch.