The petitioner has filed this petition under section 497(5), Cr. P. C. For cancellation of bail of respondents Nos. 1 and 2 who are involved in a case under section 302, P. P. C. Relating to the murder of Muhammad Shaban, son of the complainant.
2. According to the prosecution case the two respondents along with one Muhammad Akbar and Miral bad on 28-9-1979 committed murder of Muhammad Shaban by causing him knife injuries.
The incident was seen by P. Ws. Ghulam Ali and Gbulam Hussain. During the investigation all the 4 accused including the two respondents were arrested and after comple--ting investigation, challan was submitted in the Court of Sessions Judge, Jacobabad. The case was transferred to 1st Additional Sessions Judge, Jacobabad. First bail application of the respondents was rejected on merits by the trial Court. A further application under section 498, Cr. P. C., was also dismissed by the High Court. As the case did not proceed for two years hence an application was moved under the 3rd proviso to the sub--section (2) of section 497, Cr. P. C. Praying to the trial Court that as the respondents had 'already completed two years in detention hence they are entitled as of right to be released under clause (b) of the said proviso.
3. The learned Sessions Judge by a simple order passed . Under sec--tion 497(1) granted the application and released the respondents on bail on 29-9-1981. The only ground stated by the learned trial Judge for releasing the respondents is that they were arrested on 28-9-1979 and have remained in custody for spore than Z years, hence they Were entitled to bail. The date of this orders shows that the respondents were released after one day of completing two years in detention.
4. Petitioner Khawand Bakhsh who is complainant in the murder case and also father of deceased Shaban has now moved this application on the ground that the learned trial Judge has granted the bail in contravention of the provisions of section 497(1) inasmuch as that much of the delay in the trial of the case was occasioned by the fault of the respondents themselves who had from time to time been applying for adjournments. It is, therefore, alleged that the learned trial Judge has not applied his mind to the condition subject to which bail is to be granted under the 3rd pro--viso of section 497(1). The condition which is to be kept in view while giving benefit of two years detention to be accused is that the delay in the trial of the case should not have been occasioned by an act or omission of the accused or any other person acting on his behalf.
5. No doubt the order of the trial Judge would show that after comple--tion of two years detention by the respondents an order for their release was passed mechanically without giving any thought to the exception which governed the right of bail under the said proviso. The parties have, therefore, been heard and the case diary, have been perused by this Court to determine whether the accused/respondents or any of them or their representatives were responsible for protracting the trial. It may be said here that out of the 4 accused one Miral has already been granted bail on the ground of old age while another accused Akbar has not so far applied for bail and is still in custody. Perusal of the case diary shows that on most of the dates of hearing the case did not proceed because the case property was not there or witnesses were not there or accused Miral remained absent. On most of these dates there had been adjournment applications also on behalf of the counsel for the accused. But it has been conceded by the learned A. A.-G. That even if there had been no adjournment application, the case would not have been proceeded for some reasons not attributable to the respondents 1 and 2. He has, therefore, not supported the Petitioner's application for cancellation of bail.
6. Now perusal of the record further shows that the trial of the case did not commence until 3-9- 1981 when charge was framed for the first time against accused persons. Only such delay as is occasioned by an act or omission of the accused after the commencement of the trial shall disentitle him the benefit of the 3rd proviso of section 497(1). Nothing prevented the learned trial Judge from framing charge on an earlier date when the trial did not proceed at all. The act or omission of accused persons shall not be relevant for determination of their entitlement to the benefit of two years detention under the said proviso provided the commencement of the trial itself has been delayed by an act or omission on the part of the accused. In the present case I find that on several earlier hearings all was set ready for commencement of the trial by framing the charge, but the learned Sessions Judge put it off perhaps for the reason that some older cases had to be given priority. The result, therefore, is that the accused/respondents in this case cannot be blamed for protracting the trial for two years. It can be said that for two or three hearings they had made adjournment applica--tions, some time by accused Mira] sometime by respondent No. 1 and at other occasion by respondent No. 2. The delay thus caused is not inordinate. Moreover the delay caused by accused Miral shall not be attributable to any act or omission on the part of respondents Nos. 1 and 2 nor the adjournment application by one of the accused shall be reason for laying the blame for the delay on the other accused. In this connection learned counsel for the respondent No. 1 has referred to a case Agha Shafgat Hussain and others v. The State 1981 P Cr. L J 572,in which the word `accused' has been defined with reference to the 3rd proviso of section 497(1), Cr. P. C. It has been held in the above case that the word "accused" used in the third proviso to subsection (1) of section 497, Cr. P. C., is referable only to the applicant for bail and none else. If delay in the trial occurs on account of his conduct or any person acting on his behalf, shall disentitle him the concession of bail on the ground of delay but on the other hand if delay in trial occurs on account of the conduct of the co-accused it shall not be referable to the person detained in jail, otherwise if one accused absconds the others would rot in jail for indefinite period.
In view of the above definition with which I am in respectful agreement, it will be difficult to sift the liability of each accused for causing protraction of the trial.
7. The learned counsel for the petitioner has on the contrary relied on the Supreme Court case of Akhtar Abbas v. The State 1982 SCMR 225In this case the defence had applied for adjournment on as many as 8 occasions, it was, there--fore, held with reference to section 497 as amended, that the intention of law was not to calculate amount of delay caused by defence but to see if the finalization of the trial was delayed by an act or omission on the part of the accused and that if such delay was partly attributable to the accused then bail can be rightly refused. The principle laid down in the above case is not applicable to the present case because the trial itself commenced only a few days before the respondents were released on bail. It would be premature at this stage to hold that the conclusion of the trial has been delayed by the accused. No doubt after the commencement of the trial one adjournment application was moved by Mr. Ghulam Nabi, Advocate for respondent No. 1 in the trial Court whereupon the trial was adjourned to 24-10-1981 but the learned trial Judge could have either rejected the adjournment application or A set down the trial for hearing at an early date. One adjournment application after the commencement of the trial would not be sufficient to cancel the bail of the accused persons. The application is consequently dismissed.
8. The learned trial Judge shall now proceed with the trial from day to day and conclude it with utmost expedition. If there is any further attempt on the part of the accused persons to protract the trial, he shall be at liberty to invoke the exception laid down in the 3rd proviso of the section 497, Cr.
P. C., and cancel the bail.