' Naimatullah Khan son of Saifullah Khan, having failed to obtain bail from the Sessions Judge, Bannu, has applied to this Court for bail. In this petition two grounds have been mentioned on which the bail was sought, but while arguing the case Mr. Muhammad Ishaq Kundi, the learned counsel for the petitioner, has very rightly not pressed bail petition on merits as on earlier occasion bail was refused to the petitioner by this Court as well as the Supreme Court. The only ground pressed by him is the ground of delay.
2. The petitioner, alongwith 3 others, was charged for committing, on 1-3-1984 in Bannu City, the murder of one Obaidullah, his uncle. He was arrested on 3-3-1984 and since then he is in continuous detention, to which more than two years have passed.
3. The learned Sessions Judge has refused bail to the petitioner because in his view "the delay in the instant case has been occurred due to the attitude of the petitioner. He pretended to be insane but later on, he was declared fit to understand the trial by the Medical Board",
4. The learned, counsel for the petitioner has taken exception to the aforesaid order and urged that the fact that an inquiry into the insanity of the petitioner was held -on an application submitted by his maternal-uncle (Ghulam Mohyuddin) did not hamper the trial of the case nor the investigation thereof and for that reason, the petitioner, having remained in continuous detention for a period exceeding two years, could not have been denied bail by the learned Sessions Judge. His other contention is that in view of the third proviso to subsection (1) of section 497, Cr. P. C. It is the statutory right of the petitioner to get bail as all the requirements of law are satisfied in this case.
He also contends that the fact that the petitioner had on earlier occasion approached the Courts in exercise of his legal right to obtain bail on merits would not stand in his way and the time spent on finalisation of his such petitions cannot be counted against him in order to deprive him of his right to obtain bail on the ground of delay. In support of his arguments the learned counsel cited 1984 P Cr. L J 2456.
5. The learned Advocate-General appearing for the State contends that the detention for a period of two years mentioned in the relevant law commences from the day the challan is put in Court and the period spent at the investigation stage is not to be counted so as to entitle an accused to get bail on the ground of delay. He further contends that even otherwise the delay in this case has occurred on account of the conduct of the accused persons and the prosecution was not at fault in this regard.
6. There is no evidence on the record to show that the inquiry held into the insanity of the petitioner was a contributing factor in the delay that has occurred in the finalisation of this case. The application made in the record on 29-5-1984, resulted in a final report made by the Medical Board on 14-10-1984 delcaring the petitioner fit to plead. The case had by then not been instituted in the Court and the investigation of the case also appears not have suffered therefrom. The learned Sessions Judge was, therefore, not right in making it a ground for refusiug bail to the petitioner.
However, the order of the learned Sessions Judge can be supported on other grounds to which I would hereinafter refer.
7. I am in respectful agreement with the law laid down in Gala Jan's case (1) that the legitimate exercise of rights for bail on merits and the time consumed in that process cannot be counted against the accused when the later makes a petition for bail on the basis of right given to him by the third proviso to subsection (1) of section 497, Cr. P. C. However, repeated and frivolous petitions made by him or any person acting on his behalf which delay the progress of the case would certainly be counted against hint.
8. Four persons were charged by the first informant for this crime. One was the petitioner and two others were his father and mother, out of whom his mother is now dead. The fourth person (Nadir Khan) charged was the Kardar of the father of the petitioner. He is still absconding. {{FOOT NOTE}}
(1) 1984 P Cr. L 12456 {{FOOT NOTE}} The father of the petitioner one of the accused repeatedly applied to the authorities to get the case re-investigated by various agencies of police. When the investigation. By Illaqa Police was unfavourable to the accused, Saifullah Khan applied to the Inspector-General of Police for getting the case re-investigated by Crimes Branch, which was accordingly ordered. Sometime was consumed in that process. The result of that investigation was also unfavourable to the accused.
Saifullah Khan then applied on 30-10-1984 to the Superintendent of Police, Bannu for getting the case reinvestigated, with a prayer that he and other accused being innocent be discharged under section 169, Cr. P. C. On this application the S. P. Passed order directing C. I. A. Inspector to re- investigate the case. He spent some time on it and ultimately submitted his report, on the basis of which the mother of the petitioner, who later died was dropped from the challan. It was on 24-11- 1985 that the challan was ultimately put in Court. It may here be pointed out that the challan prepared by the Illaqa Police was ready for submission to the Court on 16-10-1984 and could have been put in Court before the year 1984 was over. From this it appears that much delay has occurred at the investigation stage and it was because of the conduct of Saifullah Khan one of the accused, who got the case reinvestigated by different agencies. The request for re-investigation was made by Saifullah Khan not for him alone but for the benefit of all the accused, as would his last application submitted to S. P. Bannu show copy of which is on the judicial record. The fact of the matter is that inconsequence of repeated inquiries the name of the mother of the petitioner was not included in the calendar of accused finally submitted to the Court. The delay that occurred in the process of re-investigation by various agencies would, therefore, be _regarded to have been caused by a person acting on behalf of the petitioner, especially when his actions were no disowned by the petitioner at any stage. It has, therefore, to be counted against him. Keeping in view the policy of law as declared by the Supreme Court in Akhtar Abbas's case (1), and in the light of the decision of the Supreme Court in Wazir Khan's case (2), I am of the view that the petitioner being responsible for the delay that has occurred at ,the investigation C stage, which is a stage leading to the trial is not entitled to the benefit of the third proviso to subsection (1) of section 497, Cr. P. C.
9. It is wrong to say as urged by the learned Advocate-General that the detention period . Of two years mentioned in the third proviso to subsection (1) of section 497, Cr. P. C. Commences from the day the challan is put in Court. This interpretation would only be possible after doing violence to the express language employed in the said proviso which looks after persons "detained for such offence for a continuous period exceeding two years." This period obviously commences from the day an accused is taken into custody by the Police and is not released on bail or otherwise.
10. For the aforesaid reasons, I find DO merit in this petition, which is hereby rejected. {{FOOT NOTE}}
(1) P D 1982 SC 424 (2) 1981 SCMR 427 {{FOOT NOTE}}