1. ' JAVID IQBAL, J.--This petition is being reheard vide order of this Court, dated 15 April 1989. This petition for leave to appeal is directed against the order of the Lahore High Court, Lahore, dated 30 October, 1988 whereby criminal miscellaneous filed by the petitioners for the grant of bail to them was dismissed.
2. ' Briefly the facts are that the petitioners are involved in a case under section 302/307/404/325/148/149/109, P.P.C. Vide F.I.R. Registered on 9 February 1986 for the double murder of Muhammad Sharif and Mukhtar Ahmad as well as murderous assault on Muhammad Hussain.
3. Their trial was transferred to the Special Court for Speedy Trials, Faisalabad on 28 February 1988.
4. They moved a petition for bail on the ground that despite the expiry of the statutory period i.e, more than two years, their trial had not been concluded. It may be pointed out that the occurrence took place on 9 February 1986 and F.I.R. Was lodged on the same day. The petitioners except Khalid Rashid were arrested on 28 February 1986 whereas Khalid Rashid was arrested on 26 August 1986.
5. After the investigation the challan was submitted in the Court of the Sessions Judge on 6 October 1987. Thereafter the case was transferred to the Additional Sessions Judge for trial and the petitioners were directed to appear before him on 8 October, 1987. Subsequently as stated above on 28 February 1988 the case was transferred to the special Court for speedy trials Faisalabad.
6. Thereupon the petitioners filed writ petition No,1005 of 1988 in order to challenge the notification issued by the Government entrusting the instant case to the said Court. This writ petition is still pending since on the last date of hearing i.e, 8th April, 1989 the order was reserved and it has yet to be announced. However when the said writ petition was filed a partial stay order was issued whereunder the special Court was permitted to proceed with the case but not to announce the final judgment. It was for this reason that as many as 13 witnesses were examined as against the petitioners from 5 March 1988 to 23 April 1988. However the proceedings were stayed vide order of the High Court dated 25 April 1988. The main argument of the learned counsel for the petitioners before us is that since more than two years have elapsed and the trial of the petitioners has not yet been concluded, they were entitled to be released on bail by virtue of 3rd proviso to section 497(1), Cr.P.C. On this point the contention of the learned counsel for the State is that the petitioners were themselves responsible for the delay in the trial and therefore they cannot claim the concession provided in the said proviso. It was pointed out by learned counsel for the State that when the matter was pending before the Additional Sessions Judge and the petitioners were called upon to appear before the trial Court on 8 October, 1987, no proceedings could be taken by him from 7 November, 1987 to 15 December, 1987 because the petitioners had moved an application before the Sessions Judge for the transfer of the case which was so transferred on 14 December, 1987 by making the following observation: "Though the allegations levelled against the Presiding Officer are incorrect, yet the Presiding Officer has no objection to the transfer of this case from his Court and its transfer to any other Court. The learned counsel for the parties have agreed before me that the case be withdrawn from the Court of Mr.Shahid Siddiqui, A.S.J. And be transferred to the Court of Mr. Farman All Khan, A.SJ. For disposal. I order accordingly."
7. ' It was next submitted by learned counsel for the State that subsequently the case had to be adjourned again and no proceedings could be taken from 20 December, 1987 to 28 January 1988 on account of non-appearance of Akbar All petitioner who during this period took the BA.
8. Examination. It was argued that in total the delay of two months and sixteen days caused through these devices was attributable to the petitioners. Learned counsel for the State further submitted that if the proceedings before the special Court had not been totally stayed vide order of the High Court, dated 25 April 1988 then as many as 13 witnesses had been examined and only one or two formal witnesses remained. Thus the trial of the petitioners could have been concluded. However the proceedings before the special Court were stayed as a result of the order passed by the High Court in the aforementioned writ petition filed at the instance of the petitioners.
9. ' In reply to these arguments the contentions of learned counsel for the petitioners were as follows: It was submitted that the application for transfer of the case moved by the petitioners was genuine because the case was in fact transferred by the Sessions Judge from the Court of Additional Sessions Judge to another. Therefore the petitioners cannot be held responsible for the delay on this account. It was next submitted that the adjournment of the case due to the non-appearance of Akbar All petitioner was also not due to any fault on the part of the petitioners as Akbar Ali petitioner had been permitted by the Court to take the BA. Examination. Therefore on both these counts the petitioners could not be held responsible for the delay.
10. ' We note from the record that when the petitioners had filed the aforesaid writ petition, they had also moved an application for the grant of bail to them but it was withdrawn. Thereafter they filed a separate application for the grant of bail under 3rd proviso to section 497(1), Cr.P.C. On 15 May 1988 which was dismissed by the High Court vide order, dated 28 June 1988. Not being content on that the petitioners filed another application for bail before the High Court namely criminal miscellaneous No,856-M of 1988 under section 561-A, Cr.P.C. Which was dismissed on 30 October, 1988. Thereafter the present petition for leave to appeal was moved in this court on 5 November, 1988.
11. ' As for the argument of the learned counsel for the petitioners to the effect that the period spent in pursuit of the transfer application should not have been counted as against them, it does not have any force because as it is evident from the order, dated 14 December, 1987 of the Sessions Judge the case had not been transferred on merits. In respect of the second argument of the learned counsel that the period spent by Akbar All petitioner in taking his BA. Examination should again not be counted as against the petitioners because he was allowed to take the said examination by the Court, it is likewise without any substance because the petitioners had not moved any application of separating his case from that of the others if delay was likely to be caused in the trial for this reason. Learned counsel for the State has pointed out that statements of 13 witnesses were recorded by the special Court and the statement of perhaps only one witness was left to be recorded when the proceedings were stayed by the High Court at the instance of the petitioners.
12. Had this not been so the trial could have been concluded. We also permitted Mr. Samadani learned counsel for the complainant to address the Court if he had anything to say on the merits of the case. Mr. Samadani objected to the rehearing of the matter in the circumstances of the case but on merits he submitted that the reserved judgment in the writ petition filed by the petitioners may be announced by the High Court in a week or so and therefore it would not be a proper stage to allow bail to the petitioners on the technical ground under the 3rd proviso to section 497(1), Cr.P.C.
13. Because there was only one witness yet to be examined by the Special Court for Speedy Trials, Faisalabad which was still functioning. The remaining witness will be examined in case the writ petition is dismissed, and if it succeeds the petitioners could still move a fresh application for the grant of bail under the aforesaid proviso to section 497(1), Cr.P.C. On new grounds which certainly will be available to them. It was then submitted that it was not necessary to factually calculate the amount of delay caused by the defence and that 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. On this point reliance was placed by the learned counsel on Akhtar Abbas v. The State (PLD 1982 SC 424).
14. ' The relevant portion of 3rd proviso to section 497(1), Cr.P.C. Reads 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) .............................
(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."
15. A plain reading of this section clearly implies that if delay in the trial is occasioned because of any act or omission of the accused, then the Court can decline to allow bail, if a person accused of an offence punishable with death has been detained for such offence for a period exceeding two years and whose trial has not concluded. It is evident that calculation of the time constituting delay caused at the instance of the defence is not the intention of the law in the aforesaid section. What we have to see is as to whether the conclusion of the trial has been delayed, in any manner, by an act or omission on the part of the accused. In the instant case it is evident that delay was partly attributable to the petitioners and therefore they are not entitled to the grant of bail under the aforesaid provision of section 497(1), Cr.P.C.
16. ' In the light of the above discussion, no case is made out for interference. The petition is therefore dismissed.