ABDUL MAJEED MALLICK, CJ.- The accused-petitioner, alongwilh other accused, is facing trial on the charge of murder of one Muhammad Shafi deceased. The alleged incident took place on July 24, 1988. He applied for bail pre-arrest. He was allowed interim bail but the same was not confirmed, as such the accused v/as arrested on August 28. 1988. He moved afresh for his release on bail. The petition was not pressed, as such, it was dismissed by the trial Court on December 22, 1988. On second round, the application for release of the accused was turned down on August 21, 1990. An appeal before this Court was also dismissed on September 16, 1990. The learned Judge of the Shariat Court dismissed the petition for release of the accused as, in view of the Court, the statutory period of 2 years, requiring completion of trial, was yet to complete. It was held that a period of 71 days of the trial lapsed due to different adjournments sought by the defence. The learned Judge in para 6 of the order, analysed the period of trial and on coming to the conclusion that the case of the petitioner was not covered by Proviso-Ill of Section 497(1), Cr.P.C., enforced by an amendment Act, declined bail to the accused. The accused felt advised to avail another opportunity for his release on bail. He moved third application before the trial Court on November 5, 1990. That application was again dismissed on January 3, 1991. The present petition is addressed against the aforesaid order.
2. Mr.M.S. Tariq, the learned Counsel for the petitioner, argued that the accused was arrested on July 26, 1988. Therefore, he was entitled to be released on bail by July 26, 1990. The trial Court misdirected itself in counting the period of trial and deprived the petitioner of his right of liberty by wrongfully placing the onus of delay on him. It was also argued that on the previous occasion, this Court also misdirected itself in construing the provisions of law and refusing concession of bail to the accused. The learned Additional Advocate General controverted the aforesaid objections and argued that the trial Court rightly refused bail to the petitioner as the requisite period of 2 years for availing bail on account of non- completion of the trial, was not complete in the case:
3. In order to speed up the trials of the criminal cases, by expeditious disposal, an amendment was introduced in the shape of Proviso-Ill, in Section 497(1), Cr.P. The restriction imposed on the release of an accused, where appear reasonable grounds for believing that he was guilty of offence punishable with death or life imprisonment, was relaxed in the manner of Proviso-Ill. According to the Proviso, it was laid down that the Court shall direct that any person shall be released on bail provided the Court was of the opinion that 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. By virtue of Proviso, a person accused of an offence punishable with death when detained for such offence for continuous period exceeding 2 years and whose trial for such offence was not completed, was eligible to avail the aforesaid exception.
4. Clause *(b) of the Proviso refers to the period of detention of an accused. It provides that when an accused of offence punishable with death, has been detained for such offence and the period of detention is continuous and spreading over more than two years, and the trial has not been concluded, the accused becomes entitled to his release on bail. The relevant time for counting the period of detention refers to the dale when the accused was apprehended and conclusion of trial.
5. In present case, it is noticed that the accused was arrested on the charge of murder on August 28, 1988. It is accepted to the prosecution that the trial is yet incomplete as it is at the stage of evidence of prosecution. The period of trial, of course, has exceeded two years. Ordinarily, the accused is entitled to his release on bail. But the restriction imposed by proviso divests the accused of such right, on finding that the delay in the trial has occurred due to the acts of the accused, before the Court.
6. At the lime of previous application, my learned brother, Mr. Juslice S.Z. Chaudhry arrived at the conclusion that delay of 71 days occasioned on account of adjournments made at the instance of the accused. It was in presence of the aforesaid acts of the accused that bail was declined to him.
It is noticed else where that the third application was moved by the petitioner on November 5, 1990, i.e. After the passage of a month and 21 days. At that time, the requisite period of delay occasioned on account of conduct of the accused, had not lapsed.
The trial Court, therefore, rightly dismissed the application.
7. The application was dismissed by the trial Court on January 3, 1991. The present application was moved on January 15, 1991. The record of the trial Court was summoned on the same day and it was received on January 17, 1991. The delay again occurred on account of the third application of the petitioner and for no fault of the prosecution or the Court.
8. It appears that the petitioner has repeated the application for his release within a very short interval. He appears to be anxious for his release and this is how he has suffered detention on account of delay caused by his actions.
9. It is correct that the intention of law is not to calculate the period of delay caused by acts or omission of the defence as the spirit of law, primarily, is to seek expeditious conclusion of criminal trials. But the fact remains that in order to avail the concession of Proviso-III, the accused has also to satisfy the Court that delay has not occasioned on account of his acts or omission or the acts or omission of the person acting on his behalf. On this premises, the application finds no favour. It is, therefore, dismissed.