' This is an application for cancellation of bail granted by the learned Sessions Judge, Nasirabad at Jhatpat, by his order dated 13-12-1986 in Bail Application No, 20 of 1986 to. Respondent No, 1, who stands trial under sections 302/34/147/148/149, P.P.C. Alongwith co-accused Abdul Ghani for murdering Muhammad Bakhsh and one Mst. Mots. The bail has been granted under proviso 3 to subsection (1) of section 497, Cr.P.C. (hereinafter referred to the said proviso) on the ground that more than 2 years period has expired and the trial was not concluded. The petitioner (father of deceased Muhammad Bakhsh) has filed the present application for cancellation of bail granted to respondent No, 1 by the learned Sessions Judge, Nasirabad at Jhatpat.
2. In support of the above application Mr. S.A.M. Quadri learned counsel for the petitioner has vehemently urged as under:--
(i) That admittedly some delay was caused by respondent No, 1 in the trial of the case and, therefore, he was not entitled to the above concession provided for in the said proviso.
(ii) That the learned Sessions Judge while admitting the respondent No, 1 to bail has not taken into consideration the proviso 4 of the above section and has not dilated upon the question whether respondent No, 1 was a desperate, dangerous or hardened criminal.
' On the other hand Mr. Aurang Zaib, learned counsel appearing for the State has urged that the order of the learned Sessions Judge is in consonance with law. The respondent No, 1 is present in person and is not represented by any counsel.
3. In support of his above first submission, Mr. Quadri has invited my attention to the case of Muhammad Yousuf v. The State and another 1986 P Cr. L J 1246, in which a learned Single Judge of the Sind High Court has held upon relying on a judgment of the Hon'ble Supreme Court that the adjustment of the delayed period caused by the accused is not permissible as it was not the intention of the law. It may be observed that in the above cited case two cases of the Hon'ble Supreme Court have been referred to, namely Akhtar Abbass v. The State PLD 1982 SC 424, in which the learned three Judges of the Hon'ble Supreme Court declined the petition for leave against an order of the Baluchistan High Court refusing the bail and also refusing to adjust the delay occasioned by the accused by obtaining eight adjournments. Whereas in the second case Abdullah v. The State and another 1985 SCM R 1509, a bench of two learned Judges of the Hon'ble Supreme Court converted a petition for leave against an order of the Sind High Court into an appeal and allowed the bail after adjusting the delay caused by the accused by obtaining five adjournments. However, it was contended by Mr. Quadri that through the second case is reported in 1985 but was factually decided in 1980, whereas the first case of the Hon'ble Supreme Court reported as Akhtar Abbass v. The State PLD 1982 SC 424, was a subsequent case and was decided by a larger bench.
4. I may observe that there have been a number of subsequent judgments on the said proviso delivered by the Superior Courts taking the view, which found favour with the learned Judges of the Hon'ble Supreme Court in the above case of Abdullah v. The State 1985 SCM R 1509. In my view, the basic question, while considering the availability of the said proviso is, as to whether the conduct of an accused seeking the benefit of the said proviso is such, which has caused the delay in the finalisation of the trial for the unjustified reasons. In other words if an accused person after having deliberately delayed the disposal of the case by obtaining frivolous adjournments on numerous occasions cannot come forward and claim as a matter of right that the Court may, adjust the above deliberate delayed period while granting the benefit of the said proviso. In such a case the Court may decline to press into service the said proviso. On the other hand if the Court comes to the conclusion that the conduct of the accused was not such, from which it could be inferred that he had deliberately delayed the disposal of the case, the Court could adjust the delayed period while computing the period of two years.
5. In the present case according to Mr. Quadri respondent No, 1 and his counsel had obtained five adjournments resulting into delay of two months and one day. Whereas according to Mr. Aurang Zaib, learned counsel appearing for the State, respondent No, 1 had obtained only one adjournment. In any view of the natter, the learned Sessions Judge could adjust the above delayed period, whether occasioned on account of one adjournment or five adjournments. It may again be pointed out that in the aforesaid Supreme Court's case of Abdullah v. The State and another 1985 SCMR 1509, the Hon'ble Supreme Court allowed adjustment of the delay occasioned on account of five adjournments obtained by the accused.
4. I may also point out that there is a marked distinction between grant of bail by a competent Court and the cancellation of bail by a superior Court. A bail once granted by a competent Court cannot be cancelled by a. Superior Court unless it concludes that the same was granted arbitrarily or capriciously, contrary to the record on a ground which cannot be sustained in any view of the matter. The mere fact that it might have declined the bail on the basis of the same material, might not warrant cancellation of the bail. In the instant case, the view found favour with the learned Sessions Judge cannot be said to be perverse or contrary to law as the same view was found favour with the Hon'ble Supreme Court in the above case of Abdullah v. The State 1985 SCMR 1509 referred to hereinabove.
5. Adverting to the second submission of Mr. Quadri that the learded Sessions Judge has not dilated upon the fourth proviso to subsection (1) of the section 497, Cr.P.C. And has not given any finding on the question, whether respondent No, 1 was hardened, desperate or dangerous criminal, it may be observed that in order to press into service the above fourth proviso, it is incumbent upon the prosecution (or on the complainant party if allowed by the trial Court) to place material before it to show prima facie that the accused person falls within one of the categories referred to in the above fourth proviso. The burden is not on accused person to show that he is not a hardened desperate or dangerous criminal. The cardinal principle of criminal jurisprudence that there is presumption of innocence of an accused person till contrary is proved to the hilt by the prosecution is applicable to the aforesaid fourth proviso to the extent that the. Prosecution should place some reliable material against the accused person so as to show prima facie that he is a hardened, desperate or dangerous criminal. Admittedly in the instant case no material was placed before the learned Sessions Judge as to attract aforesaid proviso. As a matter of fact this was not even canvassed at the Bar as evident from the order. In this view of the matter, the learned Sessions Judge in my view was not required to dilate upon the applicability of the fourth proviso.
6. Before parting with the above discussion, I may observe that since the above case is pending for more than two years and as two murders are involved the learned trial Court should expedite the disposal of the case. With the above observations the application is dismissed.