SHAHID ANWAR BAJWA, J.---F.I.R. No.16 of 2007 was recorded at Police Station Hassan Wahan District Larkana on 13-7-2011. It was stated by the complainant that after attending the marriage they were returning to their house and when at about 2-30 a.m. As they reached near a mosque, on the street they saw the applicant No.2 armed with K.K and applicant No.1 also similarly armed along with four other persons duly armed coming towards them. Complainant stated that they asked them as to why they had come `there at that hour and that too armed to the teeth. Harsh words were exchanged. Applicant No.1 is alleged to have fired upon Ali Gul and applicant No.2 is alleged to have fired at Riaz Hussain. This attracted the villagers and the culprits fled away. Both the injured persons died. Present applicant was arrested on 17-7-2007 and has been behind bars since that time. His bail application has been dismissed. By the trial Court on merits as well as on statutory ground of delay. The learned court below in respect of statutory ground of delay observed as under:-- "The contention of learned counsel for applicants/accused that after amendment in section 497, Cr.P.C. The applicants/accused are entitled for concession of bail under third proviso of section 497, Cr.P.C. Has got no force for the reason that after framing of charge on 19-9-2008 the witnesses of the case are in regular attendance but the case is being adjourned either on the adjournment application of advocate for accused or due to absence of learned counsel for applicants/accused, therefore, in such circumstances it cannot be said that delay is on the part of prosecution".
2. Learned counsel for the applicant stated that he would press this application only on ground of delay in view of newly inserted proviso to section 497, Cr.P.C. The said proviso is in the following, words:--"Provided further that the Court shall, except where it is of the opinion that the delay in the accused has 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 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 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 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."
3. Learned counsel took me through the diary sheet of the court from 7-8-2007 to 24-6-2011 to demonstrate that the applicants are not responsible for delay in disposal of the case. He relied on the case of Muhammad Yousif v. The State, 2000 SCM R 79.
4. Mr. Ahsan Ahmed Quraishi learned counsel, for the complainant opposed grant of bail on statutory ground and in this regard relied upon the case of Muhammad Sadik v. The State, 1980 SCM R 203, Abdur Rashid v. The State, 1998 SCM R 897 and Mst. Sahib Khatoon v. Bakhsal, 2001 M LD
229. Learned counsel also referred to the last proviso of section 497(1), Cr.P.C. And submitted that the applicant is not entitled to benefit of statutory provision.
5. I have considered the submissions made by the learned counsel and have also gone through the record.
6. In Muhammad Yousuf's case (Supra) petitioner was a police constable arrested on 4-7-1995 on allegation that he had used his service rifle to cause death of two persons and injuries to the third.
Bail application was dismissed by the High Court taking serious view of the matter because the service rifle given to the petitioner was meant for protection of citizen rather than commission of crime. The Supreme Court observed as under:-- "2. Although, we agree with the observations made by the learned Judge in the High Court that the act of the petitioner was condemnable, but we are unable to agree with the finding that the case of the petitioner fell within the exceptions. No doubt, the circumstances of the case in which bail is sought by the petitioner can be considered to arrive at a conclusion that his case falls within, the exceptions to the third proviso to section 497, Cr.P.C., but in our view, the learned Judge in the High Court failed to consider that the reasons stated by him for declining bail to the petitioner cannot take the case out of the purview of the third proviso."
7. On the other hand Mr. Quraishi relied upon Muhammad Sadiq's case (Supra) where it was held that date had already teen fixed for trial to commence shortly and therefore, it would not be fair to go into merits of the case. The case has no applicability to the facts of the present case because the ground being urged is statutory ground of delay. Mr. Quraishi next relied upon AbdulRashid's case (Supra). Facts of the reported case were that complainant and his uncle at 5-00 p.m.
Proceeded to their fields when they were attacked by petitioner and his companions who were armed with daggers and pistols. Uncle of the complainant was injured. Bail application was dismissed by the Sessions Court. However, subsequently, bail was sought on the statutory ground.
In respect of dates of trial, it was observed as under:- "............ Present petitioners were arrested on 17-1-1997. Charge was framed on 6-6=1997. Witnesses were present on 31-7-1997. On that date evidence was not recorded and the next date fixed was 13- 8-1997. On that date evidence was not recorded, next date was 8-9-1997 and on that date evidence was not recorded. Next date was 22-9-1997. On 22-91997 prosecution evidence was present but was not recorded due to non-availability of learned defence counsel. Similarly, on the next date therefore 4-10-1997 evidence was not recorded due to non-availability of the learned defence counsel and the next date was 16-10-1997. On 16-10-1997 the learned Presiding Officer was on leave and on next date i.e. 29-10-1997 members of Bar were on strike and now the next date is 12-11-1997. According to the order sheet prosecution evidence was not recorded due to non- availability of the learned defence counsel. Furthermore no statutory ground is available to the petitioner because the petitioners are not behind the Bars from more than one year. In this application I see no force and the same is dismissed."
8. Thereafter the Supreme Court laid down the law in the following words:-- "Therefore, it is crystal clear that for any reason accused or his authorized agent which necessarily includes the advocate engaged for defence causes delay, then in such eventuality protection contained in the third proviso cannot be invoked. It may further be noticed that while ascertaining cumulative effect of ultimate delay in disposal of the case, it would not be merely mathematical calculation of excluding such days for which adjournment was obtained by the accused or his counsel."
Finally Supreme Court laid down as under:-- "This Court while examining the application of 3rd proviso to section 497, Cr.P.C. In case Zahid H.
Shah v. The State (PLD 1995 SC 49) had observed that right of the accused to seek bail would not be left to discretion of the Court and would be controlled by the relevant provisions of law. However, bail under 3rd proviso (ibid) can be certainly refused to accused on the ground that delay regarding conclusion of trial had been caused on account of any act or omission of the accused or any person acting on his behalf."
9. In view of adjournments sought by the advocate for the petitioner between 29-9-1997 and 5-1- 1998 the Supreme Court dismissed the bail application. In Sahab Khatoon's case, a single Judge of this Court relied upon Abdul Rashid's case. The ratio of the above judgments appears to be that, (1) while computing the period if any adjournment is sought or case is adjourned because of absence of counsel for the accused persons, benefit of such adjournments cannot be given to the accused persons for the purpose of computation of statutory period; (2) The court is not to carry out any mathematical exercise of calculating days of each and every adjournment but is to ascertain cumulative effect of ultimate delay; (3) In case of bail on statutory ground, matter is not left to discretion of the Court but is controlled by the relevant provision of law.
10. In the present case, as stated above, the applicants were arrested on 17-7-2007 and charge was framed on 19-9-2009. Therefore, for 14 months they cannot, in any case, be considered to be responsible for delay in the trial. Even thereafter from 31-3-2010 to 29-10-2010 the case came up for hearing on as many as 16 occasions and was not proceeded for one reason or the other primarily, because either the accused persons were not produced or the Court was vacant or there as strike.
There was only one occasion during this period i.e. On 30-7-2010 when advocate for applicant was absent. Therefore, even this long period of seven months cannot be lumped at the door of the applicants. Similarly between 29-10-2010 to 24-6-2011 the case came up for hearing for about 20 times and eight of these 20 times it was adjourned because of conduct of counsel of the applicant.
On majority of the dates the case could not proceed for no fault of the applicant or his counsel.
Therefore, in myopinion, they are entitled to statutory benefit Of delay in disposal of the case.
11. Mr. Quraishi submitted that two persons had been murdered and therefore, the benefit of statutory delay should not be given. Power of this Court to deny the benefit of statutory delay has been circumscribed by the last proviso of subsection (1) of section 497, Cr.P.C. (quoted above). This proviso provides that benefit shall not be given in the following situations:--
(a) Previously convicted offender for offence punishable with death or imprisonment for life.
(b) Persons accused of act of terrorism _ punishable with death or imprisonment for life,
(c) Person. Who is hardened, desperate or dangerous criminal.
Mr. Quraishi, frankly conceded that first two of the above three are not attracted to the case of the applicants. His emphasis was that since applicants have murdered two persons they are hardened, desperate and dangerous criminals. While I am fully conscious of the fact that most precious thing is human life and one who takes one human life, without justifiable cause, deliberately and intentionally, in the words of Holy Quran, kills the entire humanity but the Court cannot lose sight of the fact that guilt or innocence of the applicants is yet to be proved at trial. No material has been pointed out either by Mr. Quraishi or by Miss Dhamrah, learned State counsel establishing or at least pointing out, allegations of similar or any other dastardly acts on the part of the applicants.
12. Since on a number of occasions, and from the diary sheet I have been able to note some 15 such instances, accused were not produced in the Court. Mr. Quraishi argued that frequently accused persons B refuse to come to the Court and are not produced for that very reason. Mr. Quraishi may be right but no such aspect of the refusal is reflected in the diary sheet of the trial Court. Now that provision of statutory delay has been reincorporated in section 497, Cr.P.C. It would be appropriate if the trial Courts while recording that accused is not produced should also record the reason as to why the accused has not been produced and the jail authorities should submit reason for not producing the accused person.
13. Result of the above discussion is that, in my opinion, applicants are entitled to benefit of statutory delay. Consequently, they are admitted to bail upon execution of P.R bond for a sum of Rs.300,000 each and one surety each for the like amount' to the satisfaction of the trial Court.
A copy of this order may be sent to Secretary Home Department, Government of Sindh for communication to the Superintendents of all jails in the Province of Sindh