' MUHAMMAD TASNIM, J.---Applicant Ghazanfarullah Khan Pathan is booked in Crime No,242 of 2009, registered at Police Station A-Section Latifabad, under section 17(3) Offences Against Property (Enforcement of Hudood) Ordinance, 1979.
2. The facts as set out in the F.I.R., are that on 30-7-2009, complainant, his mother, two, sisters, one sister-in-law and one brother were present in house, when at about 4-30 p.m. One unknown person entered inside the house and after introducing himself from police department called other his colleagues inside the house. Accordingly, three young persons entered into the house of the complainant. Thereafter, all accused persons snatched mobile phone from the complainants sister and then took out pistols and confined all family members in a room. Thereafter, accused persons broke open the lock of the two rooms situated on ground floor and one room situated on first floor, robbed all the valuable articles lying therein, and fled away. Thereafter, the incident was reported to the police and investigation was conducted.
3. Learned counsel for the applicant has submitted that applicant was arrested in the present crime en 8-8-2009 and ever since he is in custody. He further submits that applicant has applied for bail before the learned trial Court on statutory delay but the same has been rejected by the learned trial Court only by considering the adjournments sought by the accused side. He also submits that the ehallan was submitted on 22-8-2009 and the charge in the matter was framed on 9-3-2010. Thereafter the matter has been taken up in Court on. 32 dates of hearing but on all the dates either the matter was adjourned by the Court, or proceedings were not held in the Camp or the accused persons were not produced in Court or the prosecution witnesses were not in attendance. Learned counsel next submits that if learned Judge should have examined the entire diary sheets he should not have reached to wrong conclusion. Learned counsel says that the offence for which the applicant has been charged provides minimum sentence for 3 years and maximum sentence for 10 years. He further says that under the newly added amendment in section 497, Cr.P.C. The applicant is entitled to be enlarged on bail on statutory ground if delay is not attributable to the present applicant or his authorized agent and the case of the applicant falls in any of the classes mentioned in section 497, Cr.P.C. Provided further that the provisions of foregoing provisos shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who in the opinion of the Court is a desperate or dangerous criminal or is an accused of an act of terrorism punishable with death or imprisonment for life. Learned counsel further says that the applicant is not a previously convicted offender for an offence punishable with death or imprisonment for life and the learned trial Court has not opined as to whether the applicant is a hardened and desperate or dangerous criminal or is an accused of an act of terrorism punishable with death or imprisonment for life. Learned counsel also says that if adjournment on 4 dates of hearing taken by the applicant side is excluded during the entire period of trial the case of the present applicant clearly falls within the newly-added provisions in section 497, Cr.P.C., as according to learned counsel, an accused is entitled to bail if he remains in custody for more than one year. Learned counsel says that bail application be allowed and the applicant be enlarged on bail. Learned counsel for the applicant in support of his contentions relied upon the following case-law and unreported judgment:-
(1) NAZIR HUSSAIN v. ZIAUL HAQ AND OTHERS (1983 SCM R 72),
(2) MUHAMMAD SIDDIQUE v. MUHAMMAD BEHRAM AND ANOTHER (1998 PCr.LJ 358),
(3) BARKHURDAR v. LIAQAT ALI AND OTHERS (PLD 1977 SC 434),
(4) ZAHID HUSSAIN SHAH v. THE STATE (PLD 1995 SUPREME COURT 49),
(5) MIRZA SHAUKAT BAIG AND OTHERS v. SHAHID JAMIL AND OTHERS (PLD 2005 SC 530),
(6) ARBAB ALIAS QASIM v. THE STATE (2006 M LD 1846),
(7) SYED FAISAL HUSSAIN v. THE STATE (2009 YLR 24),
(8) ORDER PASSED BY HONOURABLE SUPREME COURT OF PAKISTAN IN CIVIL PETITION NO. 620-K OF 2011, DATED 11-8-2011 (SYED MAQSOOD AHMED v. THE STATE AND OTHERS).
4. On the other hand, learned D.P.-G. Has referred the entire diary sheets of the trial Court but could not point out more than 4 adjournments sought by the applicant side. He admits that present applicant is in custody ever since 8-8-2009. He also admits that charge in the matter was framed on 9-3-2010, but not a single prosecution witness has been examined till date. Learned D.P.-G. Says that there is no material available with the prosecution, which may suggest that the present applicant is a previously convicted offender for an offence punishable with death or imprisonment for life and there is also no material to substantiate as to whether the present applicant is a hardened and desperate or dangerous criminal or is an accused of an act of terrorism punishable with death or imprisonment for life.
5. I have heard the learned counsel for the parties and have perused the record and the case-law cited at the bar.
6. To deal with the ground of delay for grant of bail to the present applicant, it will be advantageous to reproduce the amendment in section 497, Cr.P.C. Whereby amendment has been brought about through Code of Criminal Procedure (Amendment) Act, 2011, which is as under`:-- "Provided further that the Court shall, except where it is of the 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 any offence not punishable with death has been detained for such offence Or a continuous period exceeding one year or in case of a woman exceeding six months 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 in case of a woman exceeding one year and whose trial for such offence has not concluded: ' Provided further that the provisions of the foregoing proviso shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to person who, in the opinion of the Court is a hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life."
7. An examination of the newly-added provision in section 497, Cr.P.C., would show that where Court is of the opinion that delay in trial of the accused has not been occasioned by an act or omission of the accused or any person acting on his behalf, direct that such accused person be released on bail, who is accused of an offence punishable with death, has been detained for such offence for continuous period exceeding two years and trial has not concluded provided that the above benefit will not be available to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life.
8. The diary-sheets of trial Court in the present matter have been filed. An examination of the diary-sheets shows that throughout proceedings, the present applicant/accused one 4 dates of hearing sought adjournment. The perusal of the diary-sheet shows that during the entire period of detention the present applicant has sought adjournment only four times and about three years have passed but the trial has not concluded till date. A perusal of the diary-sheet of the learned trial Court further shows that delay in trial is not solely attributable to the present applicant. It is also stated by the learned counsel for the applicant that present applicant is neither previously convicted offender for an offence punishable with death or imprisonment for life or is hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death. The case of the present applicant is fully covered under the new amendment section 497, Cr.P.C. And he is entitled to bail on this ground alone.
9. In the case of Hassan v. The State (PLD 1996 SC 487) heavily relied upon by the learned D.P.-G., the learned Division Bench of this Court while dealing with the bail application on the ground of statutory delay has observed as under:- "Examining the order of the learned Trial Judge, dated 30-5-1994, whereby accused Shahiq, Rahim and Umer were admitted to the facility of bail on the ground of statutory delay, we find that the learned Judge has virtually adopted a mathematical method of calculating the pendency of the proceedings while the accused remained in custody and subtracting from it the period involved in the adjournments sought from the side of the accused. This, obviously, is not a proper mode of reckoning the period envisaged relevant to statutory delay in the third proviso to subsection (1) of section 497, Cr. P. C. It goes without saying that even an adjournment of a single day, at the instance of the accused, may have repercussions and reverberations, generating far greater period of inaction in the case than merely covered by the adjournment because an adjournment has implications, subject to the facts of each case, of prompting or creating circumstances, whereby the prosecution may be pushed off the track for a longer duration of time than covered by the bare period of adjournment. This aspect, obviously, had to be considered, in the specific facts of the case at the time of grant of bail on the ground of statutory delay and was not considered. Besides, relevant to the fourth proviso to subsection (1) of section 497, Cr.P.C., before considering a case for grant of bail on the ground of statutory delay, the Court concerned has to see whether the benefit under the third proviso was or was not forfeited, on account of the added condition in such fourth proviso namely, whether the concerned accused was a previously convicted offender or a person who, in the opinion of the Court, was a hardened, desperate or dangerous criminal. Since the learned Trial Judge, while admitting the above three accused to bail did not advert to this aspect of the matter as well, the learned Advocate-General Sindh, as aforesaid, was required to obtain and submit a report, which as seen has not been done."
10. To meet the above judgment learned counsel for the applicant has invited attention of the Court to the order dated 11-8-2011 passed by the honourable Supreme Court of Pakistan in C.P.No,620-K of 2011, wherein their lordships while dealing with the bail application on the ground of statutory delay and considering the amendment brought about in section 497, Cr.P.C., which was inserted by Act VIII of 2011 dated 20-4-2011 have dealt with the issue in the following words:-- "6. We have carefully considered the submission made before us by the learned Advocate Supreme Court and Additional D.P. G.A. And perused the material placed on record. Indeed, vide two earlier orders dated 17-12-2009 and 2-11-2010, passed in C.P. No,D-2550 of 2009 and 1297 of 2010 respectively, petitioner was refused bail up the level of High Court, with directions for the Accountability Court to conclude the trial preferably within a period of three months, but these facts by itself are not sufficient to'deny the benefit of section 3 of Act VIII of 2011 dated 20-4-2011 to the petitioner, which came into force later on and has given him an independent right for grant of bail on the round of statatory delay, subject to certain conditions provided therein. For convenience sake, the said newly introduced provision of law is reproduced as under:- "3. Amendment of section 497, Act V of 1898. ---In the said Code, in section 497, in subsection (1)--
(i) in the first proviso, after the word 'Years' the words "or any woman" shall be inserted;
(ii) the second, third and fourth provisos shall be omitted: and
(iii) in the fifth proviso, for the full stop at the end a colon shall be substituted and thereafter the following provisos shall be added, namely:- ' Provided further that the Court shall, except where it is of the 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 the his behalf, 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 or in case of a woman exceeding six months and whose trial for such offence has not concluded; or
(b) who, being accused or an, offence punishable with death, has been detained for such offence a continuous period exceeding two years and in case of a woman exceeding one year and whose trial for such offence has not concluded.
' Provided further that the provisions of the forgoing proviso shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life."
6(sic). Reverting to the proceedings of .The case at hand before the Accountability Court, we find there is no denial of the fact that even before framing of charge, for no fault on his part; the petitioner remained in judicial custody for a period of over 11 months and even thereafter, as discussed above, for delay in the proceedings of the case for a period of over nine months, he is not responsible to the extent that he can be denied the benefit of above reproduced provision of law, which entitles him for grant of bail if he had remained in continuous custody for a period exceeding one year, as in the instant case.
7. This being the position, this civil petition is converted into appeal and allowed, impugned order dated -6-2011 is set aside and the petitioner is admitted to bail on his furnishing solvent surety in the sum of Rs, 1.5 million an20d P.R bond in the like amount to the satisfaction of the trial Court."
' In the case of Nazir Hussain (supra), the honourable Supreme Court of Pakistan while dealing with the bail application-on the ground of statutory delay has observed as under:-- "9. The ground of delay for grant of bail in cases falling within the prohibition contained in subsection (1) of section 497, Cr. P. C. Before the effective amendment, was undoubtedly controlled by the discretion of the Court concerned. The facts varied from case to case and accordingly the discretion exercised was creating some anomalies. That is why the Legislature intervened and the law was made more certain. One of the changes effected in the statute from the previous practice in the exercise of discretion, was that the grant of bail on expiry of certain specified period and under certain conditions was made a matter of right and not only of discretion. We do not agree with the learned counsel that the use of the word 'shall' in the third proviso, is in the meaning of 'may'. Learned counsel failed to notice that while in first proviso the word 'may' has been used, in the second and third the word 'shall' has been used with a view to highlight it. Moreover, reading 'may' for the Word 'shall' in third proviso would be in large majority of cases to the detriment of the accused and his liberty, when it become due in the context of bail.
We accordingly repel the argument of the learned counsel and hold that word 'shall' in third proviso will have to be read in its ordinary sense. That being so, there is nothing in the entire proviso, its main part as also sub-clause (b) to show the grant of bail on ground of delay in cases covered thereunder has been left (in a general way) to the discretion of the Court. We also do not agree with the argument that the matter being entirely of the discretion of the Court it is empowered to take into account the expected/apprehended delay.
12. In the case of Zahid. Hussain Shah (supra), the honourable Supreme Court of Pakistan once again while dealing with the bail application on the ground of statutory delay has observed:-- "The right of, an accused to be enlarged on bail under the 3rd proviso to section 497(1), Cr.P.C. Is a statutory right which cannot be denied under the discretionary power of the Court to grant bail.
The right of an accused to get bail under the 3rd proviso of section 497(1), Cr. P.C. Is not left to the discretion of the Court but is controlled by that provision. The bail under the 3rd proviso (ibid) can be refused to an accused by the Court only on the ground that the delay in the conclusion of the trial had occasioned on account of any act or omission of the accused or any other person setting on his behalf The bail under the 3rd proviso ibid can also be refused by the Court if the case of the accused fell under the 4th proviso to section 497(1), Cr. P. C. In all other cases the Court must grant bail. In the case of Wazir Khan v. State 1983 SCMR 427, the petitioner was refused bail by the High Court under the 3rd proviso to section 497, Cr. P. C. On the ground that the delay in the trial had occasioned on account of abscondence of the co-accused in the case."
13. In view of the above settled legal position, the present applicant has made out a case for grant of bail on the ground of statutory delay. Accordingly, applicant is admitted to bail on his furnishing solvent C surety in the surer of Rs,200,000 (Rupees Two Lac) and P.R. Bond in the like amount to the satisfaction of learned trial Court.
14. Since it is an old matter, trial Court is directed to proceed with the case expeditiously and conclude the same preferably within a period of four months under intimation to this Court through Additional Registrar of this Court.