1. This application for cancellation of by the trial Court to accused Shamman son of Taj Muhammad, Shoukat alias Shank son of Haji Noor Muhammad and Shafi Muhammad son of Qadir Bux is filed under section 497 (5), Cr. P. C. By Darya Khan alias Abdul Hussain son of Haji Abdul Karim, the complainant, on the ground that the accused persons were granted bail by the trial Court on a misconceived view of the law. The facts of the case are as follows :- According to the F. I. R. Which was lodged on 14th August, 1980 at about 7-00 p. m. By the complainant the respondents allegedly trespassed into the 'otak' of deceased Shafi Muhammad and committed his murder by inflicting knife and hatchet injuries. The incident was allegedly witnessed by several eye-witnesses whose names are mentioned in the F. I. R. Accused Shamman was arrested by the Police on 17th August, 1989, accused Shaukat was arrested on 1st July, 1980 while accused Shafi Muhammad was arrested on 21st August, 1980. The bail application moved on behalf of all the above-named accused persons/respondents were rejected by the trial Court on merit but it appears that their trial could not be completed within 2 years of their respective dates of arrest, therefore, all of them applied for grant of bail under the third proviso to subsection (1) of section 497, Cr. P. C. The orders for grant of bail, the accused Shamman, Shaukat and Shafi Muhammad were passed by the Incharge Presiding Officer IVth Court of Additional Sessions Judge, Hyderabad on 29th August, 1982, 13th September, 1982 and 8th December, 1982, respectively. In all the cases the learned Presiding Officer was of the view that the trial of accused persons were delayed beyond two years for no fault of them and accordingly admitted them to bail. The learned counsel for the applicant/complainant contends that the to the accused persons was illegal both on facts and law. It is contended that the accused on the date they were enlarged on bail and firstly not completed two years of their continuous detention even on the basis of calculation made by the learned trial Court and secondly it was not a case where the trial was delayed for no fault of accused. It is pointed out that the case was mostly adjourned from time to time at the instance and request of accused persons or their respective counsel and therefore the delay if any, in the trial of the accused is attributable solely to the accused and not to the prosecution. The learned counsel for the State also supported the contention of applicant's counsel. The learned counsel for respondents jointly contended that although a period of about 9 months elapsed when the first accused Shamman was released on bail in the case but no progress in the case could be made at the Court of IVth A. D. J. Hyderabad, is lying vacant and there being no immediate prospect of case coming to an end in near future no useful purpose will be served by cancellation of the bail of accused persons on the ground that they were released on bail their period of detention was short by few days as they have now become entitled to bail again on the ground of delay. I have carefully considered the arguments of learned counsel for the applicant, State and the respondents. In order to appreciate the controversy involved in this application it will be advantageous to reproduce here the proviso under which the respondents were released on bail by the Incharge Judge, of the Court of 1Vth A. D. J. Hyderabad. The proviso is as follows :- "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 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 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."
2. A reading of the above proviso to section 497 (1), Cr. P. C. Makes it clear that the Court shall direct release of persons on bail who being accused of an offence punishable with death, has been detained for a continuous period exceeding two years but his trial is not completed, except in cases where in the opinion of Court the delay was occasioned or caused by an act or omission of the accused or any other person acting on his behalf. Therefore, the delay of 2 years or more simpliciter is no ground for enlargement of an accused under the abovequoted provision of law.
3. The Court has to be statisfied before excercising the power under the 3rd proviso to section 497 (1), Cr. P. C. That the delay in the trial was not occasioned or caused by any act or omission on the part of the accused persons or any other person acting on his behalf. The proviso to a section being in the nature of an exception to the rule enacted in the main section, all conditions mentioned in the proviso has to be satisfied fully before the proviso could be made applicable. The learned counsel for the respondents referred to some decided cases to contend that where accused obtained adjournments in the case then in order to calculate the period of his detention the time spent on account of such adjournments is to be deducted from the total period of his detention and if after such deduction it is found that he has been in detention for the period mentioned in clauses (a) and (b) of the proviso to section 497 (1), Cr. P. C. As the case may be then the Court will grant him bail. I am unable to accept this contention. The deduction of period for which an accused obtained adjournment in a case may be a relevant consideration in the circumstances of a particular case to determine his total period of detention under clauses (a) and (b) of the proviso to section 497 (1) but from/it does not necessarily follow that where after such calculation the accused is found to be in custody for the period mentioned in the above proviso or in excess of that, B the Court must release the accused on bail. The release of an accused under the above proviso to section 497 (1), Cr. P. C. By the Court is not dependent on any such mechanical calculation of the period of detention suffered by the accused but depends largely on an objective satisfaction of Court to the fact that the delay in the trial of accused beyond the period mentioned in the above provisions was not the result of any act or omission of the accused or any other person acting on his behalf.
4. The scope of the 3rd proviso to section 497 (1), Cr. P. C. Come up for consideration before the Supreme Court in the case of Akhtar Abbas v. The State and I reproduce here with respect the following observation of the Court appearing at page 425 of the report :- "4. We regret we are not impressed by these submissions, as we find that the requirements of the law is not fulfilled in this case, as at least on eight occasions adjournments were sought by the defence for one reason or the other. In such a case it does not appear to be the intention of the law to calculate the amount of delay caused by the defence. All that necessary is to see whether the finalisation of the trial has, in any manner, been delayed by an act or omission on the part of the accused. In the present case, the delay is partly attributable to the accused. The submission that the date in question was not fixed for the hearing of the case is not correct. On the contrary, it is clear from the order sheet of the trial Court on these dates most of the witnesses were summoned and were present but their examination had to be postponed owing to the request made by the defence counsel."
5. In the light of the above stated legal position I will now examine whether the grant of bail to respondents by the Court was justified. All the respondents were represented before the trial Court by different counsel. They are being tried jointly for the alleged murder of deceased Shafi Muhammad, and therefore, the presence of all of them was necessary on all dates of hearings.
6. Accused Shaukat was represented by Mr. Pit Baksh Kamisani. Advocate, while accused Shamman and Shafi Muhammad were represented by 'Messrs Rasul Baksh Baloch and Agha Abdul Rasool Advocates, respectively. On 10th March, 1981, accused Shaukat and Shafi Muhammad were present in Court in custody but accused Shamman was not produced as he was stated to be ill. The diary shows that P. W. Darya Khan, Shafi Muhammad, Wali Muhammad were present in the Court but due to absence of accused Shamman who was ill, the case was adjourned to 6th January, 1981.
7. Thereafter the case did not proceed on account of bail applications filed on behalf of respondents which were disposed of by the Court and other miscellaneous proceedings in the case. However, on 13th Septemper, 1981 the accused were again produced in Court in custody and A. P. P. Was also present put Messrs Khamisani and Agha Abdul Rasool were absent. Accused Shaukat filed application for adjournment which was granted and the case was put off to 23rd September, 1981 and P. Ws presens were bound down for appearance on the next date. On 23rd September, 1981 the state counsel was present. The accused were produced in custody but Mr. A. A. Rasool Advocate for accused Shafi Muhammad was absent and application for adjournment on his behalf was moved which was granted and the case was adjourned on 3rd October, 1981. P. Ws. Present were bounddown for next date of hearing. On 3rd October, 1981 again application for adjournment was filed by the Advocate of the accused Shafi Muhammad, and at his request the case was adjourned to 21st October, 1981. On 21st October, 1981 the accused in custody, the A. P. P., P. Ws. And the counsel for accused Shaukat were present in Court but Messrs Agha Abdul Rasool and Rasool Buksh Baloch for the accused Shafi Muhammad and Shamman were absent and therefore, at the request of accused the case was adjourned to 27th October, 1981. On 27th October, 1981 the accused were present in custody the A. P. P. And defence counsel Mr. Kamisani and Rasul Baksh were also present but Mr. Agha remained absent and moved application for adjournment which was granted and the case was adjourned to 11th November, 1981. On 11th November, 1981 the accused were present in custody, the A. P. P. And Mr. Khamisani Advocate were also present. The counsel for accused Shamman applied for adjournment which was granted and the case was adjourned to 26th November, 1981. On 26th November, 1981 the accused were not produced from the jail althoug the counsel for the State and the defence were present in Court. Therefore, the Court ordered the production of the accused on 16th December, 1981. On 16th December, 1981 the case was adjourned1 on account of absence of Presiding Officer who was on casual leave, to 13th January, 1982. On 13th January, 1982, the accused, the A. P. P. And the defence counsel Mr. Khamisani and Mr. Rasool Bux were present but Mr. Agha Abdul Rasool was called absent and an application was filed on his behalf for adjournment which was granted and the case was put off to 31st January, 1982. Again on 31st January, 1982 the P. Ws. The A. P. P. And defence counsel Mr. Khamisani and Mr. Rasool Bux Baloch were present but Mr. Agha Abdul Rasul who was absent applied for adjournment which was granted and the case was put off to 20th February, 1982. The P. Ws. Were bound down for the next date. On 20th February, 1982 the learned Presiding Officer having noticed the continued absence of the counsel for the accused Shaukat and Shafi Muhammad on serveral dates ordered for appointment of pauper Advocates for them and adjourned the case to 11th March, 1982. On 11th March, 1982 the pauper Advocates appointed for the accused Shaukat and Shafi Muhammad were found absent and therefore notices were issued to them. The P. Ws. Present were bound down for 16th March, 1982. On 16th March, 1982 the accused, the A. P. P. Pauper Advocates for accused Shaukat and Shafi Muhammad and P. Ws. Were present in the Court but accused Shafi Muhammad and Shaukat filed a written application praying that they were not willing to be represented through the pauper Advocates and that they may be given time upto first week of April, 1982., so that they may contact their counsel who will represent them in the case. Mr. Agha Abdal Rasool also applied for adjournment on the ground that he was busy in the High Court and, therefore, in these circumstances the case was adjourned to 29th March, 1982, and P. Ws. Were bound down for that date. On 29th March, 1982 the case was adjourned to 11th April, 1982 as the A. P.
8. P. Was on casual leave. On 11th April, 1982 some of the P. Ws. Present were examined and the case was again adjourned to 22nd April, 1982, and some progress was also made on 22nd April, 1982, in the case when another P. W. Was examined and the case was adjourned to 4th May, 1982. On 4th May, 1982 again Mr. Agha Abdul Rasool Advocate for accused Shafi Muhammad applied for adjournment which was granted and the case was adjourned to 12th May, 1982, and P. Ws. Present were bound down. On 12th May, 1982 the case did not proceed as the Presiding Officer was on sick leave and therefore, it was adjourned to 3rd June, 1982. On 3rd June, 1982 the depositions of P. Ws.
9. Shafi Muhammad and Wali Muhammad were recorded and case was adjourned to 8th June, 1982 with direction to issue summons to remaining P. Ws. On 8th June, 1982 evidence of P. Ws. Ashraf, Noor and Muhammad Yasin were recorded and the case was adjourned to 4th July, 1982 for further evidence. Thereafter the Court of IVth A. D. J. Hyderabad fell vacant on account of transfer of the Presiding Officer and, therefore, no further progress could be made in the case. From the above narration of facts it is abundantly clear that except for one or two occasions when the case was adjourned on account of illness or absence of Presiding Officer and the state counsel all adjournment in the case were obtained by the accused persons either on the ground of absence of their counsel or for the reason that they were not willing to be represented by the pauper Advocates appointed to defend them in the c case. The delay of trial in these circumstances was mostly attributable to the acts and omissions of respondents and their counsel and therefore, it was not a fit case in which the respondents could avail of the concession contained in the 3rd proviso to section 497 (1), Cr. P. C. For grant of bail due to delay in their trail. The learned counsel for the respondent attempted to argue that adjournments were frequently obtained only by one of the accused namely Shafi Muhammad and therefore, the other accused should not suffer. This arguments cannot be availed in the present case as the respondents are jointly charged with the murder of deceased Shafi Muhammad and their case is to be tried jointly. Secondly it is not correct that only counsel for Shafi Muhammad obtained adjournment in the case and the counsel for other accused were willing to proceed with the case. The adjournments were obtained frequently by all the counsel appearing for the 3 accused/respondents and the fact that the adjournments obtained by counsel of Shafi Muhammad were greater in number than the adjournments obtained by other counsel is of not much significance in the present case. There was no delay in the trial of the respondent in the present case which could be attributed to the prosecution. It was, therefore, not a fit case for grant of bail to respondent under the 3rd proviso to section 497 (1), Cr. P. C. The learned counsel for the applicant/complainant also rightly pointed out that even the calculation of period of two years made by the trial Court after deducting the period of adjournment obtained by them was erroneous and on the dates they were granted bail they had not completed the aforesaid period. I accordingly cancel the to respondents by the trial Court. Their bail bonds are accordingly cancelled, and they are directed to be taken into custody forthwith. I am informed that Court of IVth A. D. J Hyderabad, is still lying vacant, The case, therefore, shall stand transferred to the Court of First A. D. J , Hyderabad, who will dispose of the same expeditiously. PLD 1982 SC 424