' During the routine checking on 10-3-1990 at 12-00 hours of vehicular traffic on G.T.Road in front of Railway Station, Nowshera Cantt., Mohammad Nazif S.H.O., Police Station, Nowshera Cantt.
Alongwith police party intercepted `Flying Coach' and made to alight therefrom a suspect. He disclosed his name as Rehmat Khan petitioner herein. The personal search of the petitioner led to the recovery of 3 cakes of opium duly wrapped in a polythylene bag. On weighing it was found to be 1,620 grams out of which 4 grams were separated for chemical analysis while the remaining 1,616 grams were sealed into a parcel. The accused petitioner was arrested and a case was registered against him under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979.
2. The only ground urged by Mr. Bashirullah Khan, learned counsel for the petitioner, is that the petitioner has remained in custody a few days short of one year i,e, from 10-3-1990 till today and that not a single prosecution witness has been examined . The petitioner is thus seeking bail under the 3rd proviso to section 497(1), Cr.P.C. The learned counsel for the petitioner maintained that it is borne out from record that the Presiding Officer is away to Islamabad to participate in Shariah Training since 17-12-1990 and there is no likelihood of his return till the end of March or Ist week of April, 1991.Thereafter the prosecution evidence would be produced
3. Qazi Shamsuddin, learned counsel for the State, opposed the plea of bail raised on behalf of the petitioner and contended that this petition was moved on 9th of January, 1991 and the period from the said date till today is attributable to the petitioner.
4. The language used in the 3rd proviso to section 497(1), Cr.P.C. Clearly indicates that a person, being accused of an 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, shall be released on bail. However, he is not to be so released if the Court is of the opinion that delay in the trial of such person has been occasioned by an act or omission on his part or some other person acting on his behalf. The question that survives for consideration is whether the period spent in seeking bail amounts to "an act or omission" occurring in the 3rd proviso to section 497(1), Cr.P.C. It is by now settled that reasonable period spent in pursuing the application for bail which is not vexatious does not come within the mischief of "an act or omission of the accused or any other person acting on his behalf'. In the instant case, even if this period is excluded, there are no prospects of the trial of the petitioner being completed within the statutory period provided for under the 3rd proviso to subsection (1) of sect ion 497(1), Cr.P.C.
5. This being so, the petitioner is admitted to bail pending trial in the sum of Rs, 50,000 with two sureties each in the like amount to the satisfaction of the Assistant Commissioner, Nowshehra. The sureties shall be men of means belonging to Nowshera Tehsil.