1. ' Applicant Shabir Shah son of Qadan Shah is charged with an offence under section 302/34, P. P. C.
2. According to the F. I.R. The accused and his accomplice Imam Shah pounced upon Hussain Shah, brother of the complainant and by inflicting hatchet blows to Hussain Shah caused his death on 8th January, 1982 at 8 a. m. When the deceased was on his wa3 to the house of his sister. The accused was arrested and challaned tc face his trial under section 302/34, P. P. C.
3. ' He is in custody since he was arrested on 8th January, 1982 but hi; trial has not yet commenced.
4. The applicant moved the bail application on the ground that "he has remained in custody for more than 2 year; and 5 months continuously and no substantial progress has been made.' The application has been dismissed by the learned Sessions Judge, Khali purl on two grounds firstly, according to the learned Judge, the applicant desired adjournment on three dates i. e. 8th March, 1983 ; 9th April 1983 and 8th May, 1983 and if the 88 days period is excluded then the period of detention would shrink to a period of less than 2 years thus putting him out of the proviso to section 497 which runs as follows, and under which the application for bail was moved.
5. "Proviso to section 497 :-
(a) 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.
(b) Who, being accused of an offence punishable with death, has been detained for such offence for a continuous period exceeding two years and when trial for such offence has not concluded."
6. ' The view taken by the learned Judge is that due to the request for three adjournments, 88 days should be excluded from the total. The learned Judge seems to be impressed by the literal meaning of the expression two years and has overlooked the real legislative intent underlying the body of the section particularly the word "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".
7. The view taken by the learned Judge seems to be that the period of 2 years should be determined by strict mathematical calculation and the number of days consumed on account of adjournment at the request of the accused should be mathematically deducted from the period of two years even though the request for adjournment may have been made under compelling circumstances or on account of reasons beyond the control of the accused. If this view is adopted the beneficial effect of the proviso would become a dead letter. The legislative intent reflected in this proviso seems to be that long period of detention in the prison without trial should be curtailed as far as possible and if due to unavoidable circumstances occasioned due to the inability of the prosecuting agency in marshalling all the evidence against the accused or due to any other good cause the trial 11 as not concluded the accused should be allowed the concession of bail. Each request for adjournment emanating from the accused or his counsel is to be examined and the Court is bound to judicially determine the question whether a particular adjournment sought for by the accused was such an "act or omission" for which the accused should be denied the benefits to which he is entitled under the proviso, suppose the accused is not asking for any adjournment but during the trial is obstructing the course of the trial by creating nuisance, by frivolous and irrelevant question in cross-examining, by threatening the prosecution witness from appearing to record their evidence. All these factors would go to show that the accused is not co-operating and the purpose and object is nothing but to avoid the evil day and protract the proceedings and cause harassm ent to everyone concerned.
8. ' On the other hand if the accused has shown all eagerness and anxiety for early disposal of the case, and in a helpless situation begs for an adjournment on account of his serious illness or on account of his counsel not being able to attend due to a good and substantial cause, the accused should not be condemned and deprived of the benefit of the proviso.
9. ' Suppose, accused is anxious to produce some expert witnesses in his defence but it is beyond his means to ensure the attendance of such witnesses as early as he wants, or the prosecution is threatening the defence witnesses and preventing them to appear in Court and the accused, in good faith is seeking adjournment to ensure their attendance, would such a delay be attributed to accused ? Even in cases where the accused has engaged a Senior Counsel who is called in Supreme Court or any other superior Court, and he seeks adjournment on personal grounds would it be an "act or omission" attributable to the accused ?
10. In my humble opinion the resulting delays on account of honest and bona fide requests for adjournments made by the accused should not be treated differently from the delays caused on account of Courts remaining vacant, delays caused due to non-attendance of prosecution witnesses, the delays occasioned due to administrative and other problems. A fair trial is the right of the accused to demand and obligation of the state to provide. Surely he cannot be put to any disadvantage for demanding what is his legal right. But if the progress in the trial is held up due to the obstinacy or obstructionist attitude of the accused or negligence or inexcusable indifference shown by the accused such period of delay should be treated as "act and omission" within the meaning of the provision and must be excluded on the principle that no man should be allowed to take advantage of his own wrong.
11. ' The learned Judge should re-examine the position and must apply his mind to determine whether the delay caused on account of requests for adjournment could be condoned. If so it should not be read against the accused, so as to deprive the accused/applicant of the benefits of the proviso.
12. ' I am supported in this view by a judgment of a learned Judge of Lahore High Court reported in PLD 1983 Lah.
24. Ghazanfar Ali Gondol, J. Has interpreted the proviso to section 497 in the following manner and I respectfully adopt his reasonings :- "The act or omission provided for in third proviso to subsection (I) 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 of 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. 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 hold 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 bail granted 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 sick, which was beyond his own control. Similar justifiable delay in the conclusion of the trial can take place when an under trial prisoner on coming to know of new circumstances prays for resummoning 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 place on a provision in a statute should be such as would suppress the mischief and advance the remedy. The mischief in this connection 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 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 their trial having been concluded. The said third proviso to subsection (1) of section 497, Cr. P. C., was added by Criminal Procedure (Second Amendment) Ordinance, 1979 (Ordinance LXX1 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.
13. ' 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 (1) of section 497, Cr. P.
14. 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."
15. ' The other ground for rejecting the bail of the applicant is that the applicant/accused "is a hardened desperate and dangerous Criminal" within the meaning of newly-added proviso to the proviso to section 497. The new proviso has been inserted in the body of the section by amending Ordinance No, XXXII of 1983 published in PLD 1984 C S 45 which is as follows :- "Provided further that the provisions of the third proviso to this subsection shall not apply to a previously convicted offender or to a person who in the opinion of the Court, is a hardened, desperate or dangerous criminal."
16. ' The learned Judge has chosen to condemn the applicant before him on the intimation of Jail authorities. It's a very dangerous precedent to base the judicial findings on the intimation of jail authorities without going to the roots of the allegations made against the applicant and assessing the value of each adverse allegation.
17. The result is that the case is sent back to the learned Judge for reevaluation and re-examination of the entire case and for an early disposal C of the bail application in the light of the discussion in this order.
18. ' Copy of this order to be sent to the learned Sessions Judge Khairpur with the direction that the bail application should be re-heard and disposed of according to law.