The question that has been raised in this application filed under subsection (5) of section 497, Cr.P.C. Relates to the interpretation of third proviso to subsection (1) of section 497, Cr.P.C., which was added by Ordinance LXXI of 1979 (Code of Criminal Procedure (Second Amendment)
Ordinance, 1979) in the following words: "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) who, being accused of any offence not punishable with death, has been detained for such offence for a continuous period exceeding one year and whose trial for such offence has not concluded; or
(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;"
2. In this case some very interesting and important questions of law arise for consideration, and therefore, it is necessary to set out accurately the facts as they are either admitted or proved, before entering into a discussion of the several points to be decided.
3. On night between 21-10-1986 and 22-10-1986, Abdul Khalique son of applicant/complainant Muhammad Shareef was murdered. On 22-10-1986 at out 6-30 a.m. The: naked body of Abdal Khalique was sound at Railway ground Sukkur, who had multipul injuries on his person. On the same day at 7-30 a.m. The applicant lodged F.I.R. At `A' Section Police Station Sukkur (Crime No.143 of 1986) which was registered under section 302, P.P.C. During the course of investigation Muhammad Rafique, respondent No.4 was arrested on 30-10-1986. Lal Bux alias Laloo and Muhammad Shareef, respondents Nos.2 and 3 respectively, were arrested on 6-11-1986. After usual investigation all the three respondents were sent u-- to stand their trial. On 6-10-1987 the case was fixed for regular hearing and on this date charge was framed against respondents Nos. 2 to 4, who pleaded not guilty and claimed a trial. The case was then adjourned to 17-10-1987 for the evidence of the witnesses. On this date two witnesses, namely Muhammad Shareef and Ahmed were present, but the case did not proceed as the above respondents (accused)had not engaged any advocate to represent them. The hearings of the case were then fixed on 12-11-1987, 3-12-1987 and 11-1-1988 anti on these dates the case could not proceed for the same reason, although on all the occasions the witnesses were in attendance. The order-sheet dated 11-1-1988 throws light about the conduct of respondents 'Nos. 2 to 4, which is reproduced below: "All the three accused produced in custody. A.P.P. Present. P.Ws. Sharif and Abdul Hamid present.
This is fourth time that due to conduct of defence this murder case is not proceeding. Only one accused Muhammad Rafique has engaged Advocate, who has moved adjournment application.
Witnesses bound down. Put of to 13-2-1988. Accused remanded to custody."
4.The case did not proceed on 13-2-1988, 13-3-1988, 10-4-1988, 25-4-1988 and 22-5-1988 and on all these dates of hearings the adjournments were sought, on behalf of respondents, although the witnesses were in attendance. The Presiding Officer was then transferred and the Court remained vacant from 13-6-1988 to 17-1-1989. Even after the posting of the new Judge no progress could ire made in the case as the counsel for respondents who were playing the game of hide and seek from the very outset managed to get the hearings adjourned on 13-6-1989 and 1-7-1989. On 30-8- 1989 the learned IInd Additional Sessions Judge, Sukkur granted bail to respondents Nos. 2 to 4, with the following order: "Heard Advocates for the accused/applicants and A.P.P. For the State. Perused the record and proceedings of the case. The applicants/ accused in proceedings. It has been contended ' accused /applicants that the accused/applicants are in jail since more than 2 years and the trial has not been concluded. The delay in trial is not due to act of the has, therefore, contended that the accused/applicants be released on bail, The learned A.P.P. Has opposed the grant of bail applications.--- I have carefully gone through the record and proceedings of the case. The accused/applicants were arrested on 9-11-1986 and 30-10-1986, from that date till this date they are in jail, the case was adjourned on the ground that accused,, was not produced by jail authorities or the witnesses were not served. No doubt that adjournment application was filed by the accused, if the period of these applications is excluded even then tl:e accused have completed two years in jail. I, therefore, grant the bail on furnishing surety in the sum of Rs.50,000 each with P.R. Bond in the like amount."
5. It is in these circumstances that the present application for cancellation of bail granted to respondents Nos.2 to 4 is filed before this Court.
6. The policy of criminal law is to bring the accused to justice as speedily as possible, but still the Court can postpone the trial if in its opinion there are sufficient and reasonable grounds for doing so. Inordinate delay in disposal of a case amounting to the abuse of process of law was considered to be a valid ground for the grant of bail even in a serious case like murder but this exercise was controlled by the discretion of the Court" By the above amendment made in 1979, there was statutory recognition to this exercise of discretion and the third proviso to subsection (1) of section 49'7, Cr.P.C. Made this ground certain. The benefit of this proviso was, however controlled by an exception which made it clear that the accused shall be disentitled to the grant of bait on the ground of statutory delay, if the delay in the trial occurs on account of his conduct or due to the conduct of any person acting on his behalf. The manner in which the respondents Nos. 2 to 4 have dragged the case without any progress indicates that they had contributed towards this delay with a view to secure their release on bail by taking advantage of their own conduct. The case of Akhtar Abbas d The State reported in PLD 1982 SC 424, is a leading judgment on this point and in the.
Words of their Lordships of the Supreme Court, `all that is necessary is to see whether the finalisation of the trial has, in any manner, been delayed by an act or held that intention delay caused by the defence from the total period of detention so as to give him benefit of third proviso to subsection (1) of section 497, Cr.P.C.
While deciding Criminal Bail Application No.,449 of 1989 at Karachi on the ground of statutory delay I had observed: "Contribution by accused towards delay in disposal of a case is certainly a valid ground for refusing bail to him even if he completes a period of one year in continuous detention and the trial is not complete. Arithmetical calculations in computing the adjournments sought by the accused main do not govern judicial decisions. The Judge has to go deeper to find out the actual cause of delay. The delay, however long and languishing it may be, if caused by direct or indirect acts of the accused, which he manoeuvres cannot be considered in his favour while deciding the application for the grant of bail on the ground of statutory delay. Nobody can be allowed to commit fraud with statute.
8. The learned counsel for respondents Nos. 2 to 4 have placed reliance upon the following cases in an attempt to satisfy this Court that the said respondents were entitled to the grant of bail:
(i) Gul Muhammad and 3 others v The State PLD 1983 Lah 681.
(ii) Abdul Halim v The State PLD 1986 Pesh 92.
(i.e) Rahim Bux and others v The State PLD 1986 Kar. 224.
(iv) Gul Muhammad and 2 others v The State 1987 P Cr. L J 737.
(v) Mounder and others v The State 1988 SCMR 1113.
(vi) Noor Haleem v The State 1988 P Cr. L J 2284.
(vii) Zazay v The State PLD 1989 Kar. 93.
9. Out of the above-cited judgments the cases at S. No.(ii), (i.e), (iv) and (v) are not relevant as in all these cases the fourth proviso to subsection (1) of section 497, Cr.P.C. Was in issue. Having regard to the view I take of the case on the authority of the Supreme Court, viz. Akhtar Abbas v. The State PLD 1982 SC 424, by which I am bound, I abstain from encumbering this order with a further discussion, which, in my opinion is unnecessary.
10. Mr. A.R. Faruq Pirzada, learned counsel for respondent No.2 who has argued with ability has further contended that his client cannot be penalised due to the conduct of co-accused who were in fact instrumental in causing delay in the disposal of the case. My attention is invited to the cases reported as Shouki alias Shoukat and another v The State and another 1984 SCMR 613 and Rustam v The State PLD 1986 Kar 561. I have no cavil with the ratio of the above judgments, but in the present case the respondent No.2 had equally contributed to this deliberate delay in disposal and his case cannot be distinguished from the rest of the accused.
11. The learned Additional Sessions` Judge acted mechanically while exercising discretion in favour of respondents Nos. 2 to 4. He did not look into the fourth proviso to subsection (1) of section 497, Cr.P.C. No report was called from concerned S.H.O. Or the jail authorities to find out, if the respondents Nos. 2 to 4 are dangerous, hardened and desperate criminals. The case of Mondhar and others v The State reported in PLD 1990 SC 934 is clear on this subject,
12. In view of the above factual and legal position, I am of the opinion that the learned Additional Sessions Judge, Sukkur has exercised his discretion in disregard of the established position of law.
Accordingly the bail granted to respondents Nos. 2 to 4 is cancelled and they will be taken into custody by the trial Court. The application made under subsection (5) of section 497, Cr.P.C. Is allowed.
13. The case has already become old and I have been informed that the Court of IInd Additional Sessions Judge, Sukkur is lying vacant. I would, therefore, transfer this case to the file of learned Sessions Judge, Sukkur for disposal according to law. It would be expedient if the learned Sessions Judge proceeds with the trial expeditiously on day to day basis.