1. This is an application under section 497(5), Cr. P.C. For cancellation of the bail of respondent No. 2 granted by Mr. Rajab Ali Leghari, learned 4th Additional Sessions Judge, Karachi (East). The facts giving rise to this application briefly stated, are that the petitioner on 30th August, 1981 at 12-30 a.m.
2. Lodged First Information Report with Police Station, Korangi, involving respondent No.2 as inflicting dagger injuries on the deceased Abdul Razzak. On arrival at the place of occurrence the petitioner saw him (respondent No.2) giving dagger injuries to the deceased and when he tried to intervene, the said respondent No.2 attacked the petitioner and then ran away brandishing the dagger. Later, the deceased was taken to Jinnah Post Graduate Medical Centre, but he died while on the way.
3. Respondent No.2, the accused was arrested on the same date i.e. 30-8-1981 by the Police and was challaned under section 302, P.P.C. A bail application was moved by him in the Sessions Court but the same was rejected on merits. He, then, procured a certificate to show that on the date of commission of the offence he was below 16 years of age and applied for bail on that ground but, as alleged by the petitioner, due to his timely efforts respondent No.2 was compelled to withdraw it However, by moving another application for bail, he succeeded in getting bail by Mr. Fazal Hussain Shah, the then 4th Additional Sessions Judge, Karachi by his order, dated 14-12-1982, on the ground that he was a T.B. Patient and it would be detrimental to his life to detain him in Jail. Thereafter an application was moved by the petitioner in the High Court for cancellation of the said bail on the ground that respondent No.2 was hale and hearty. The matter was, then, referred to a Medical Board by this Court and the said Medical Board opined as follows:- "The Board is of the opinion that his continued imprisonment would not be detrimental to his life."
4. Accordingly, the order, dated 14-12-1982 passed by the said Additional Sessions Judge was set aside and the bail was cancelled by this Court by its order, dated 23-7-1984, and respondent No.2 was again taken into custody.
5. Respondent No.2 subsequently, moved another application on 15-4-1985 before Mr. Lalchand Piswa ni, 40 Additional Sessions Judge, Karachi on the ground that respondent No.2 had remained in the Jail for two years and as such he was entitled to be released on bail, under the third proviso to section 497, Cr. P.C. This application was rejected by the learned 4th Additional Sessions Judge, by his order, dated 23-4-1985 on the ground that respondent No.2 had also contributed to the delay inasmuch as six adjournments were sought by him. Respondent No.2, filed another application on 15-6-1985 on the same ground before the same learned Judge that respondent No.2 had been in the Jail for more than two years and the trial was not likely to be concluded in the near future. This application did not, again, meet favour with the said learned 4th Additional Sessions Judge and his application was again dismissed. Respondent No.2, being aggrieved of the said order did not file any application in the High Court but chose to file on 17-8-1985 yet another application, which was the third in series on the same and similar ground before Mr. Rajab Ali Leghari, the 4th Additional Sessions Judge (East), Karachi, who by his order dated 19-8-1985 granted the bail. The ground on which the learned Judge passed his order may best be reproduced in his own words:- "I perused the diaries of the case and order of the learned IVth Additional Sessions Judge, dated 23rd April, 1985 and 11-7-1985 in which the learned Additional Sessions Judge has stated that six(6) times the case was adjourned for want of defence counsel though the prosecution witnesses were present. Now I have calculated the period including the date of adjournments with the assistance of the learned A.P.P. And Defence counsel. The accused /applicant has remained in jail for 2 years 3 months and 25 days which period is more than 2 years after deducting the period for which the applicant/ accused applied for adjournment as the applicant /accused has remained in Jail for more than 2 years and after deducting the period of the adjournment has remained in Jail. The delay now in conclusion of the trial cannot be assigned to the applicant/ accused or to any body acting on his behalf. I, find that the case of the accused falls within the above proviso and he is entitled to the benefit of the same. Accordingly I grant bail to the applicant/ accused in the sum of Rs.50,000 and P.R. In the like amount."
6. Being aggrieved of this order, the petitioner has filed this application in the High Court for cancellation of the bail, as stated above.
7. Mr. Abdul Mujeeb Pirzada, learned counsel for the petitioner raised a number of pleas in support of his application, which are summarised as follows:- (i)The impugned order is illegal and without jurisdiction, as two earlier applications had been dismissed on the same ground and no fresh ground for bail was urged for the third time.
8. (ii)The respondent is not entitled to the benefit under the said proviso as the detention is not for two years continuously.
9. (i.e)The time involved in adjournments sought by respondent No.2 is not to be deducted from the total period of detention so as to give the benefit of the proviso.
10. As regards the first contention, Mr. Mujib submitted that it seems that the order has been passed in an appeal against the two earlier orders, dated 23-4-1985 and 11-7-1985 because the ground in rejecting the earlier two applications and the ground granting the bail on the 3rd application is, more or less, the same. Mr. Khawaja Naveed, however, contended that each day of the detention of respondent No.2 gives him a fresh cause of action and a fresh ground, but this submission, looking to the circumstances of the case did not impress me. In the circumstance that three applications were moved during a period of about 3 months on the same and similar ground and the two applications were already rejected on the same ground it was, to say the least, an act of judicial impropriety to entertain the same and grant the bail. It ought to have been dismissed in limine. It creates misgivings in the mind of the public. The Courts should always discourage the tendency of making successive applications for bail on' the same ground and in the same Court. As would appear from the order itself the learned Judge has discussed the earlier two order is with regard to the six adjournments and the computation of 51 days, as observed in the impugned order, and disagreeing with the earlier two orders passed by the learned 4th Additional Sessions Judge (Mr. Lalchand Peswa ni) has granted the bail. I am of the view that unless the third application for bail was made on ground other than that available at the time the first or second application was made, no other application on the same ground was entertainable in the Sessions Court. Mr. Rajab Ali Leghari's order, in fact amounts to an order passed in appeal, which he was not competent. I, therefore, strike down the said order as illegal and improper. Reliance is placed on Muhammad Yousuf v. The State 1984 SCM R 134.
11. As regards the second contention that the continuous period of detention in the case is not exceeding two years, it is noticed that the accused was arrested on 30-8-1981 and was bailed out on 14-12-1982. He remained on bail till 7-8-1984 when his bail was cancelled and he was again taken into custody. The last bail application was filed by him in August, 1985. Thus, he remained in jail for one year and 3 months in the first instance and then for about one year when he was re- arrested. Mr. Naveed referred to an unreported order passed by my learned brother Mr. Justice Sajjad Ali Shah in Bail Application No. 175 of 1985 Javed lqbal v. State. In that order reliance was placed on 'Saleh Muhammad's case reported in 1983 SCMR 341 which was also relied on by Mr. Naveed. The observation of the learned Supreme Court referred to by the learned counsel is reproduced below:- "It may be clarified that, if the respondent is otherwise entitled to the benefit conferred by the third proviso to section 497, Cr. P.C., the fact of the interruption in the continuous detention for the requisite period on account of the impugned order shall not be taken into account and the period already spent by him under detention shall be computed in continuity with. His subsequent detention as a result of the decision in this appeal."
12. On the other hand, Mr. Abdul Mujib placed his reliance on the observation made in Criminal Appeal No.34 of 1982 (Nazar Hussain v. Zia-ul-Haq) as quoted in the above judgment which are as follows:- "The interpretation, it is again pointed out with respect, is violative of the clear language used in the statute. It provides the accused must "have been detained for a continuous period exceeding two years". Obviously future apprehended delay is not covered by the statute; otherwise, in Courts clogged with heavy arrears, the accused in murder cases which are not likely to be taken up for a period of two years or above, would be entitled to claim the concession of bail as of right, even on the next day of their arrest which could not be the intention of the Legislature."
13. Mr. Mujib did not cite the said case before me. However, I was able to find it in the same Volume, 1983 SCMR 72. On perusal it seems that the learned Supreme Court though referred to the proviso which provides that the accused must have been detained for a continuous period exceeding two years," but the learned Supreme Court was only concerned, in that case, with the delay of two years and deserved that it related to the past detention and not for the future and that the nature of the third proviso was mandatory, whereas in the other case 1983 SCMR 341, a specific clarification was made in the judgment regarding computation of the periods of arrest. Respectfully following the observation appearing at the end of the judgment in Saleh Muhammad's case 1983 SCMR 341 quoted above, the two periods of detention of respondent No.2. As detailed hereinabove may, thus, be taken together for purpose of calculating the period of detention of two years.
14. As regards the third contention, it will be observed that the third proviso to section 497 is extendable to an accused person who has been detained for a continuous period exceeding two years and his trial has not been concluded, provided the delay in the trial has not occasioned due to an act or omission on the part of the accused or any other person acting on his behalf. In this respect, Mr. Mujib relied on the judgment of the learned Supreme Court reported as Akhtar Abbas v.
15. The State PLD 1982 SC 424. In that case, although the accused had been in detention for more than three years, the trial had not been concluded. An application for bail was made under the third proviso to section 497, Cr.P.C. The application was rejected by the High Court of Baluchistan for the reason that as many as eight adjournments were sought by the defence. On a petition made to the Supreme Court for special leave to appeal it was contended that the adjournments granted on those dates did not consume more than a period of' three months and, thus, the bail should have been granted. The contention was repelled by the learned Supreme Court. The relevant observations read as under: "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 is 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, 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."
16. On the other hand, Mr. Khawaja Naveed Ahmed, learned counsel for respondent No.2 referred to two unreported orders passed by my learned brother Mr. Justice Sajjad Ali Shah in Criminal Bail Application No. 433 of 1985 and Mr. Justice Syed Ally Madad Shah in Criminal Bail Application No. 1426 of 1985 wherein the bails have been granted after deducting the period of delay occasioned by or on behalf of the accused. I have carefully perused these orders and with respect I would like to say that in both of them no case-law has been cited or referred to.
17. The last case relied on by Mr. Naveed on the above point is reported as Abdullah v. The State and another 1985 SCMR 1509. It is a very short judgment and I intend to reproduce the entire paragraph dealing with the whole discussion:- "We had given notice yesterday to the Advocate-General, because we were disturbed by the gross delay in the hearing of the case and after examining the order sheet produced by Mr. Hayat Junejo, the learned Advocate-General admitted that the petitioner had been in custody for much more than two years. He further drew our attention to the fact that the hearing of case had been delayed on five occasions at the instance of the petitioner. That is true, but even if the periods for which the case was adjourned at the petitioner's request are excluded, the petitioner has been behind bars for more than two and a half years. Yet the learned Advocate-General is not able to give any assurance as to when the case would be heard. We are, therefore, satisfied that the petitioner is entitled to bail, because the delay in the hearing of the case, which is not due to his fault, is unconscionable. Accordingly after hearing the learned Advocate-- General we have converted the petition into an appeal, set aside the impugned order and released the petitioner on bail. Bail in the sum of Rs.10,000 with two sureties of the like amount to the satisfaction of the Sessions Court, Hyderabad."
18. The tenor of the above judgment of the learned Supreme Court, with utmost respect, does not seem to be laying down a rule that while interpreting proviso to section 497, Cr.P.C. The period of delay occasioned due to the act or omission of the accused is to be deducted for computing the net period of two years. On plain reading of the judgment, it appears that had the Advocate- General given an assurance as to when the case would be heard the learned Supreme Court would not, perhaps, be inclined to grant bail to the accused. More ever, Mr. Abdul Ghafoor Manghi, learned Assistant Advocate-General, while supporting the cancellation on this around too, submitted that the above case 1985 SCMR 1509 as relied on by Mr. Naveed has been G decided by two Hon'ble Judges of the Supreme Court and the date of its decision is 8th January, 1980, whereas the case 1982 SCMR 424 relied on by Mr. Mujeeb is of a later date viz. 26th February, 1980, and has been decided by three Hon'ble Judges. I am, therefore, inclined to respectfully follow the decision as reported in 1982 SCMR 424.
19. For the reasons discussed above, I allow this application and cancel the bail. Respondent No.2 will now surrender himself before the trial Court. Before parting with the case I would, however, like to direct the trial Court to conclude the proceedings in the case within four months from the date of surrender by the accused respondent No.2. In case the proceedings are not concluded within the said period of four months for no act or omission of the accused, he will be at liberty to file fresh application for bail.