' By a short order dated 5-7-1982 I had granted bail to petitioner and had said that reasons for that order would be stated latter. This judgment constitutes reasons for grant of that bail.
' For the proper appreciation of the points canvassed in this case, it is necessary to quote in extenso, subsection (1) of section 497, Cr. P. C. And three provisos attached to it. They read as below :- 497.-(1) When any person accused of any non-bailable offence is arrested or detained without warrant by an officer in charge of 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 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 of 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 nor 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.
' It is clear that later part of subsection (1) places an embargo on the power of Court to grant bail to persons in respect of whom there is an reasonable ground to believe that they have been guilty of offences punishable with death or imprisonment for 10 years or more. The first and third provisos relax the rigout of the rule in that part of subsection (1) and enable the Court to grant bail even to such persons in certain situations. Further by comparison of the language used in the three provisos, it becomes clear that the first proviso gives discretion to the Court to grant or refuse bail while the third proviso leaves on discretion with the Court and is mandatory in nature and except in the situation detailed in it, it imposes a duty upon the Court to grant bail if the conditions prescribed in it are satisfied.
3. In this application filed on 29-6-1982, petitioner had sought bail under above said para. (b) of third proviso to section 497(1), Cr. P. C. On the ground that petitioner had been detained for the offences under sections 365, 302/34, P. P. C. For a continuous period exceeding two years and his trial for such offences had not concluded yet. According to the learned counsel, the petitioner was arrested on 18-6-1980, and two years of his detention expired on 17-6-1982, and he was, therefore, entitled to grant of bail under the said mandatory provision of law. He submitted that the learned Additional Sessions Judge had erred in refusing bail on 27-6-1982 on the ground that petitioner stood charged under sections 302/201, P. P. C. And that most of the prosecution evidence had already been led and recovery witnesses had already deposed against the petitioner had petitioner had allegedly led to the recovery of dead body of the deceased.
4. Mr. Riaz-ud-Din Ahmad, Advocate, assisted by Ch. Abdul Nabi, Advocate, learned counsel for the State did not dispute the correctness of the submission that rejection by the Additional Sessions Judge of the said bail application filed under para. (b) of third proviso to section 497(1), Cr. P. C. On the grounds given by him in his order dated 27-6-1982, was not sound in law. He also accepted that the said provision of law placed an obligation on the Court to release a person on bail if continuous period of two years had passed since his arrest without his trial having been concluded but submitted that this was subject to the condition that the delay in the trial of the accused should not have been occasioned by an act or omission on the part of the accused or any other person on his behalf. He submitted that on 19-1-1982, the said case had been adjourned to 27-2- 1982, on the application of the petitioner before the Additional Sessions Judge to the effect that his counsel had suddenly fallen sick. On the basis of this data, he submitted that the delay in the trial had been occasioned by an act of the petitioner in asking for adjournment on account of sickness of his counsel and, therefore, bail could not be granted to the petitioner at this stage. According to the learned counsel for the State, after excluding the period for which case was adjourned, two years' period prescribed in the said provision of law would come to an end on 26-7-1982 and, therefore, the petitioner could not be granted bail on 5-7-19$2.
5. I, however, found myself unable to accept the said contention of the learned counsel for the State. The act or omission provided for in third proviso to subsection (1) of section 497, Cr. P. C.
Means wrongful act or omission resulting in unnecessary and avoidable delay in the conclusion of the trial. On the face of it, this appears to be the intention of the Legislature. If that were not so, then many accused persons would be deprived of the benefit of this provision simply because delay in the conclusion of the trial had been caused by an innocent and bona fide act on their part or any person acting on their behalf. That surely cannot be the intention of the Legislature. It is well-settled principle of interpretation of Statutes that construction on a statute should be beneficial to the citizen and if there can be two interpretations of a provision of law in a statute, the one which is consistent with reason should be adopted and the one which leads to absurdity or unreasonableness or patent injustice to a citizen should be avoided. A It would be wholly illogical to penalize an accused person for no wrongful act on his own part or any one on his behalf and deprive him of the benefit of this provision. It cannot be gainsaid that it would be extremely unreasonable to bold that if for instance delay in the conclusion of the trial is caused due to sudden sickness of an under-trial prisoner himself resulting in his admission in the hospital, he should be deprived of the right of to him by the said provision immediately on expiry of the statutory period simply because delay in the trial had been caused due to his innocent act of falling stick, which v$ as beyond his own control. Similar justifiable delays in the conclusion of the trial can take place when an under-trial prisoner on coming to know of new circumstances prays for summoning of prosecution witnesses for further cross-examination or when his counsel prays that evidence of all the eye-witnesses or all the recovery witnesses should be recorded on one and the same day and if a few of them only are present on a particular day, the case should be adjourned to another day so that cross-examination of the counsel is not disclosed and the said reason is accepted by the Court to be a genuine and a valid reason for adjournment of the case and case is actually adjourned on that account. The period of these justifiable delays which are the result of bona fide acts of the under-trial prisoner or his counsel cannot be deducted from the period of delay of two years and if the said prescribed period has reached in spite of them, it is the bounden duty of the Court to release such a person on bail. Another principle of interpretation of Statutes is that construction placed on a provision in a statute should be such as would suppress the mischief and advance the remedy. The mischief in this connect was that according to law as it stood before the introduction of third proviso to subsection (1) of section 497, Cr. P. C., the under- trial prisoners accused of offences punishable with death or imprisonment for ten years or more who could not be granted bail under section 497, Cr. P. C., were kept confined in jail for inordinately long periods extending to many years without c their trial having been concluded. The said third proviso to subsection (1 of section 497, Cr. P. C. Was added by Criminal Procedure (Second Amendent) Ordinance, 1979 (Ordinance LXXI of 1979) to remedy the said mischief. The interpretation given above advances the remedy of bail to the under-trial prisoners and suppresses the mischief of keeping them in jail for unnecessary period beyond the period prescribed in the said proviso.
6. In view of the above, I hold that any delay caused in the conclusion of the trial due to a bona fide act or omission on the part of under-trial prisoner or anyone else on his behalf is not to be deducted from the period prescribed in the said third proviso to subsection (I) of section 497, Cr. P.
C. Entitling such a person to grant of bail and the said prescribed period would be deemed to have been reached even if the said delay had been caused due to any bona fide act or omission on the part of the said under-trial prisoner or anyone on his behalf.
7. In the present case, petitioner was arrested on 18-6-1980, and two years of his detention in the jail expired on 17-6-1982. On 19-1-1982, two formal witnesses, namely, Muhammad Khan Constable and Abdul Sattar A. S.-I. Were present. The petitioner is said to have filed an application for adjournment of the case on the ground that his counsel had suddenly fallen ill. The Additional Sessions Judge had in his interlocutory order dated 19-1-1982 referred to filing of said application by petitioner approvingly. He did not record the evidence of the said two witnesses and adjourned the case to 27-2-1982 and bound down the said two witnesses for the said date. That meant that though the Additional Sessions Judge had not said so in so many words, he had accepted as true the plea of the petitioner made in his said application that his counsel had suddenly fallen sick. The sickness of the learned counsel for accused-petitioner had thus been accepted to be a justifiable cause for adjournment of the case. Therefore, the delay occasioned in the conclusion of the trial due to that cause cannot be counted against the petitioner while calculating the prescribed period of two years. In view of this, the said period of two years expired in case of petitioner on 17-6-1982.
Petitioner was, therefore, entitled to the grant of bail on 5-7-1982 under para. (b) of third proviso to subsection (1) of section 497, Cr. P. C.
8. It was for these reasons that I had granted bail to the petitioner on 5-7-1982.