' Nawab Ali, the petitioner herein, is facing his trial before the learned Additional Sessions Judge-I, Mardan, to answer charge under section 302, Pakistan Penal Code for double murder of Said Nawab and Zaman Qadir deceased. The petitioner was arrested on 14-9-1988, after about three years of the occurrence which had taken place on 3-3-1985, as is evident from the report lodged with Police Station, Shahbaz Garhi and consequently case registered vide F.I.R. No,77 of the even date.
2. The petitioner applied for his release on bail to the learned Additional Sessions Judge-I, Mardan, on ground of his having remained in detention forover two years continuously and no delay having been caused by an act or omission on his part, he has matured his title to be released on bail under third proviso to subsection (1) of section 497, Cr.P.C.
2. The learned Additional Sessions Judge, however, turned down this plea of his and consequently dismissed the application vide his order dated 5-12-1990. Hence the instant petition.
3. I have heard Mr. Abdul Aziz Khan, learned counsel for the accused-petitioner, Mr. Amjad Zia, learned counsel for the State and Mr. Tasleem Hussain, learned counsel for the complainant at length and also perused the record of the case with their valuable assistance.
4. It is contended on behalf of the accused-petitioner that the opinion of the learned Additional Session Judge, in holding the petitioner responsible for the delay in his trial is misconceived inasmuch as the trial has been primarily adjourned from one date to another on account of failure on the part of the prosecution to produce all the four eye-witnesses together. According to the learned counsel, on a couple of occasions, the counsel for the petitioner was either indisposed or out of station in connection with his personal engagements and, in such a situation, the learned counsel vehemently argued, an unavoidable absence of the counsel on a date fixed for the trial of the accused-petitioner cannot be construed nor does it constitute a delay having occasioned "by an act of any other person" under the law enshrined in third proviso to subsection (1) of section 497, Cr.P.C. He took me through the order-sheets of the learned trial Court in support of his arguments in that the adjournment sought for on behalf of the petitioner was solely for the purpose of examining all the eye-witnesses at one and the same hearing so that the piecemeal examination of theirs may not result in prejudicing the interest of the petitioner. He, therefore, urged that mathemetical calculation of the statutory period of two years is not permissible under the law and delay caused in conclusion of the trial due to the bona fide and honest requests for adjournment made on behalf of the accused-petitioner should not be held as a delay occasioned by or on behalf of the accused-petitioner. He, therefore, submitted that the petitioner having continuously remained for two years in detention, has matured his right to be released on bail under third proviso to subsection (1) of section 497, Cr.P.C.
6. As against this, the learned counsel for the State submitted that the expression used in third proviso supra is in fact in respect of a counsel only and any delay occasioned by any act or omission of the learned counsel shall be construed as that of the accused and would disentitle him to the concession of bail provided under section 497, Criminal Procedure Code. He contended that there is no bar under the law to record piecemeal evidence nor an accused person can force the prosecution to produce a set of eye-witnesses together which at times may not be possible for the prosecution due to more than one unavoidable reason. He finally urged that the adjournments niade by the learned trial Court are almost all resorted to at the instance of the accused-petitioner and none on the request of the prosecution and, in this process, he manoeuvred to acquire statutory period of two years in order to facilitate his release on bail under third proviso ibid. In these circumstances, it is submitted by the learned counsel for the State that the petition is misconceived and the order of declining him bail by the learned Additional Sessions Judge, being neither perverse nor capricious, hardly merits interference therewith.
7. The learned counsel for the complainant, while supporting the impugned order of the learned Additional Sessions Judge, submitted that after commission of the offence, the petitioner has remained a fugitive from law for about three years and on his arrest, excepting a few formal witnesses having been examined, the petitioner, through his learned counsel, has been consistently and persistently delaying the process of his trial on one pretext or other including his own absence for personal reasons. He also decried the insistence of the learned counsel for the petitioner on producing all the four witnesses mentioned in the first information report at one and the same hearing; stating that while, at times it is physically impossible to procure the attendance of the whole set contemporaneously, it is on the record that the examination of the material eye- witnesses was possible for determination of the guilt or otherwise of the accused-petitioner and, had they been let examined by the learned counsel for the petitioner, the trial would have been concluded much earlier. Repelling the arguments of the learned counsel for the petitioner regarding the bona fide adjournments sought for by the defence, the learned counsel for the complainant argued that such adjournments nevertheless shall be reckoned towards the delay in the statutory period of two years for the purpose of allowing bail to the petitioner and he is not be entitled thereto in the circumstances.
8. I have given my serious consideration to the submissions made by the learned counsel for the parties in support of their respective pleas.
9. The scope of controversy, in my considered opinion, is narrowed down to the question as to whether adjournments sought for by a learned counsel of an undertrial accused can or cannot be construed, in the opinion of the Courts, as the delay in the trial occasioned by an act or omission of any other person acting on his behalf.
10. A reference in this behalf to third proviso to subsection (1) of section 497, Cr.P.C. Seems inevitable which reads:-- 497 (1)... ...........................
' Providedfurther ..................................................................
' 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."
11. A bare reading of the aforequoted proviso relevant to the case in hand would reveal that although it seems ex facie mandatory in nature and contemplates two conditions which if fulfilled would leave no option for a Court but to release the undertrial accused on bail; firstly, continuous detention for a period of two years and secondly, trial yet to be concluded; nevertheless, besides fourth proviso, which too puts an embargo on such release of the accused under circumstances mentioned therein; this very proviso provides an exception, namely, causes of dely in the process of the trial of an accused person, whether occasioned by an act or omission of accused himself or any other person who is acting on his behalf. The intention of the legislature thus appears more than clear in that the delay simplistic does not bestow on an under trial accused to claim his release on bail as of right after the lapse of two years of his arrest and, of course, his trial having remained inconclusive. And if there had been adjournments of case resulting practically in no progress of the trial, the Court is bound to take judicious view of such adjournments under the law and it is in this context that the opinion of the Court, founded on the conduct of the defence counsel ;n general and nature and number of the adjournments sought for on behalf of the accused, in particularly, assumes paramount importance.
12. Consequently if the Court, having taken into consideration all the attending circumstances, including the adjournments asked for by the learned defence counsel of the undertrial accused, arrives at an objective conclusion and, as such, in his opinion the delay in the trial has in fact occasioned by means of such a conduct, the Court, I unhesitatingly hold, shall not be bound to follow the third proviso in releasing the accused on bail. For, I am of the considered opinion that the conduct of a defence counsel, seeking adjournments, shall be deemed as an act of another person on behalf of the accused within the meanings of third proviso ibid. And this is my answer to the question posed in paragraph 9 supra.
13. True the mathematical computation in the statutory period is not to be resorted to as a matter of routine in counting the days consumed on account of such adjournments as are procured at the request of the accused. But, I am clear in my mind that the adjournments asked for during the course of trial of an accused person, although may not be important for arithmatical calculation of the statutory period as contained in third proviso; yet, as stated above, the number and nature thereof, if made at the instance or on behalf of the accused, shall play an important role in forming the trial Court's opinion as regards following, an otherwise, mandatory proviso or declining to do so.
14. A perusal of the record indicates that as many as five adjournments on 26-7-1989, 28-10-1989, 7-1-1990, 5-5-1990 and 2-9-1990 occasioned, the delay, which according to the learned counsel for the State, come to a total period of about one year. I find that a situation of similar nature came up before the Supreme Court in Akhtar Abbas v. State (PLD 1982 SC 424) and it was observed:- "We regret we are not impressed by these submissions, as we find that the requirement of the law is not fulfilled in this case, as at least on eight occasions adjournments were sought by the defence for one reason or the other. In such a case it does not appear to be the intention of the law to calculate the amount of delay caused by the defence. 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."
13. Viewed in the perspective of the foregoing on factual as well as legal premises, I have no hesitation in holding that while the adjournments sought for at the trial by or on behalf of an accused person, including his counsel, keeping in view the frequency, number and nature thereof, can legitimately lead a Court to form an opinion that the same have caused unnecessary delay in the trial; the trial Court in such a situation, shall have no option but to calculate mathematically the period wasted due to such adjournments towards computing the statutory period and if, in the circumstances, he finds the statutory period less than the one permissible under the law, shall be rather duty bound to decline the bail to an undertrial prisoner and he would be falling in no error by not following the third proviso to subsection (1) of section 497, Cr.P.C.
14. In this context of the matter, I find that the learned trial Court, in the instant case, has proceeded in right direction and its impugned order does not call for any interference therewith. Ex consequenti, this petition fails and is hereby dismissed.
' I would, however, like to observe that in view of the fact that a period of more than two years has already elapsed since the commencement of the trial, it would be expedient if the trial Court proceeds with the case expeditiously and preferably on day to day basis to conclude the trial within a reasonably short time. The record of the case shall be remitted to the learned trial Court forthwith.