' Respondent Rahim Dino who is facing trial before IVth Additional Sessions Judge, Sukkur in Crime No,56 of 1988, Ghotki P.S., under section 302/34, P.P.C., applied for bail before this Court in Cr.B.A.No,754 of 1988, but his prayer was refused vide order dated 6-11-1988. He repeated his bail application before this Court in Cr.BA. No,717 of 1989, which was sent to principal seat for orders of the Honourable Chief Justice as the earlier application was dealt with by my brother Tanzilur- Rehman, J (as he then was). During the pendency of the said application, the respondent No,1 applied for bail before the trial Court on the ground of statutory delay and his prayer was allowed vide order dated 3-4-1990 in the following words:-- "I have heard the learned counsel for petitioner/accused and APP for State and perused the case file.
' The grant of bail is urged on the ground of delay in conclusion of trial within stipulated period of two years. The accused is charged for the offence punishable under section 302, P.P.C. Which is punishable with death.
' The police reports that the petitioner is not previous convict and that there is no other case pending against him. The facts of the present case also do not indicate that petitioner is desperate and hardened criminal. The co-accused are already granted bail on merits. The petitioner was arrested on 9-4-1988 as such his period of two years will be completed after 6 days only. The hearing of case was fixed today for which one witness was bound down and process for other was issued but neither the process is returned nor the bound down witness has come. In the result the case has been adjourned and in no circumstances the trial can be conducted before 9th instant.
The petitioner is otherwise not dangerous criminal and in the circumstances the learned APP raised no objection for grant of bail. The petitioner/accused may, therefore, be released on bail on furnishing surety solvent in sum of Rs. 50,000 only and P.R. Bond in like amount.
"It is in these circumstances that the applicant/complainant has approached this Court for cancellation of to respondent No,1.
2. I have heard Mr.Maqbool Ahmed Awan, learned counsel for applicant, Mr. Samiullah Qureshi, learned counsel for the respondent No,1 and Mr. Zawar Hussain Jafferi, learned AA.-G. For State.
3. The short point which arises for determination in this application for cancellation of bail made under subsection(5) of section 497,Cr.P.C., is whether the anticipated delay in disposal of the case can be taken as a ground for granting bail to an accused on the ground of statutory delay under third proviso to subsection(1) of section 497,Cr.P.C. The answer to this contention is provided by the Honourable Supreme Court in cases reported as Nazir Hussain v. Ziaul Haq and others 1983 SCM R 72 and Saleh Muhammad v. The State and another 1983 SCM R 341. In the first cited authority, the Supreme Court observed as follows:- "In this case we are not concerned with the conditions other than the one directly relevant namely the delay of two years. The learned Judge in the High Court, with respect, it may be pointed out, was under an impression as if not only past delay of two years but also future expected delay of similar period can also be made the basis of bail under sub-clause (b). This interpretation it is again pointed out with respect, is violative of the clear language used in the statute. It provides that 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."
4. The second authority is directly applicable to the point in issue in which leave was granted to applicant to consider the following questions:-- "(i) Whether in a case, otherwise covered (on merits) by the prohibitions contained in subsection
(1) of section 497, Cr.P.C., can bail be granted to an accused person if the offence is punishable with death, on ground of delay when the period of two years has not yet expired.
(ii) After the enactment of amendment/proviso in section 497(1) wherein the period of delay has been specified, is it open to a Court to grant bail on ground of delay when admittedly statutory period has not expired, due to other considerations which were not found enough to form an independent ground for bail.
(iii) Whether it was not mandatory for the High Court while granting bail to the respondent on ground of delay under section 497 (1), Cr.P.C. To consider the question/assertion raised from State/Complainant's side that the delay was caused by the accused."
5. The third proviso to subsection (1) of section 497, Cr.P.C. Was examined by their Lordships of the Supreme Court and it was held:-- "Now the third proviso to the amended section 497, Cr.P.C., extends to an accused person, the right to be released on bail, if (in case of an offence punishable with death) he "has been detained" for a continuous period exceeding two years and his trial for such offence has not concluded, provided the delay in the trial has not been occasioned by an act or omission on his part. In this case there is no dispute that, the respondent having been in detention since 22-8-1980, on the date of the impugned order, i.e, 27-5-1982, the statutory period of two years had not elapsed. Clearly, therefore the order of the High Court was violative of the mandatory provisions of law above referred to and the order was passed without jurisdiction."
Admittedly the respondent No,1 had not completed the period of two years in continuous detention which period was short by six days.
6. In view of the above rule laid down by the highest Court of this country, it was not open to the Additional Sessions Judge, Sukkur to have considered the anticipated delay of six days while granting bail to respondent No,1 on the ground of statutory delay. Accordingly to respondent No,1 is cancelled who shall surrender before the trial Court. It will, however, be open to him to repeat his bail application after completing an aggregate period of two years in detention which prayer will be considered on its own merits. It may be clarified that the period already spent by respondent No,1 under detention shall be computed in continuity with his subsequent detention as a result of the order passed by this Court, if he is otherwise entitled to the grant of bail. The application made under subsection (5) of section 497, Cr.P.C. Is allowed.
Bail cancelled.