' Sheraz Khan and Gul Momin accused-petitioners are charged in a crime of murder and are facing trial in the Court of Additional Sessions Judge, D.I. Khan. They were arrested on 28-2-1989. The trial first commenced in the Court of learned Sessions Judge, D.I. Khan on 27-7-1989 where up to 19-2- 1991 some of the prosecution witnesses were examined on different dates and the case was adjourned as some of the witnesses could not be served. The case was then entrusted to the learned Additional Sessions Judge, D.I. Khan for hearing at Tank as per directions from this Court.
From 25-2-1991 to 24-4-1991 it came up for hearing at Tank but no progress could be made because the defence counsel had submitted an application on 25-2-1991 that the case being at fmal stage should be heard at D.I. Khan, for it would be convenient for him to conduct the case there. This application was rejected. On the next day the accused could not be produced from jail.
On 24-4-1991 the learned defence counsel again sent an application for hearing of the case at D.I.
Khan. This time it was allowed and the case was adjourned to 29-5-1991 for hearing at D.I. Khan. In the meanwhile an application for bail on the statutory ground of delay in trial was submitted on 19- 3-1991 which was dismissed on 1-4-1991 by the learned Additional Sessions Judge, D.I. Khan, on the view that the detention period had not exceeded two years when the adjournments obtained by the accused-petitioner on 25-9-1989 and 23-8-1990 are taken into consideration. It was further observed that only three P.Ws. Were left to be examined whose statements would be recorded on the next date of hearing.
2. Not contended with the aforesaid order of the learned Additional Sessions Judge, the accused- petitioner has now applied to this Court for bail on the same statutory ground that his detention period has exceeded two years and the trial has not concluded.
3. Mr. Sanaullah Khan, counsel for the accused-petitioners argued that since the adjournments on the two dates i.e, 25-9-1989 and 23-8-1990 were sought on genuine grounds as he was busy in this Court, therefore, that period was wrongly excluded from the total period of detention of two years.
Reliance was placed on 1991 P Cr. L J 534 (Karachi). He was of the view that bail could not be refused merely because the trial was likely to conclude in the near future. 1988 MLD 450 was referred. It was submitted that the benefit of the third proviso to section 497, Cr.P.C. Can only be denied when there is something against the offender like his previous conviction or of his being a hardened, desperate or dangerous criminal. The accused-petitioners are neither previous convicts nor dangerous criminals. In support of these submissions, reliance was placed on 1990 SCM R 1045.
4. Mr. Ejaz Muhammad Khan, the learned Assistant Advocate-General in reply submitted that the accused-petitioners being desperate criminals, directly charged in the F.I.R. Of the case in hand and also in two other cases are not entitled to the benefit of the third proviso to section 497, Cr.P.C.
He referred to the following case -law:-
(1) 1989 P Cr. L J 1235,
(2) 1989 P Cr. L J 76 (Karachi) and
(3) 1990 P Cr. L J 822 (Karachi)
5. I have heard the learned counsel for the parties and have carefully gone through the case-law cited at the Bar. The accused-petitioners are claiming bail on the basis of third proviso to section 497, Cr.P.C. Which reads as under:-- 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; The proviso third is controlled by proviso four added by the Code of Criminal Procedure (Second Amendment) Ordinance (XXXII of 1983), dated 26-12-1983 which reads as follows:-- "Provided further that the provisions of the third proviso to this subsection shall not apply to a previously convicted offender or to a person who in the opinion of the Court is a hardened, desperate or dangerous criminal."
' The Court dealing with the bail matters under the third proviso to section 497, Cr.P.C. Has to see whether the delay in trial of the accused has not been occasioned by the act or omission of the accused or any other person acting on his behalf, because only then the accused shall be entitled to bail if his detention period exceeds two years and the trial has not concluded. The delay in trial of the accused-petitioners which has resulted in their detention for continuous period exceeding two years has been occasioned by their act or by their counsel acting on their behalf. The learned Additional Sessions Judge was of the view that the two adjournments sought by the counsel of the accused-petitioners was an act on their behalf. Learned counsel for the accused-petitioners contests these observations of the learned Additional Sessions Judge and submits that the adjournments sought were genuine, for, he was appearing in the High Court on those days. It may be true but here in this case the adjournment sought on 23-8-1989 was not agreed to by the learned private counsel who stated so today at the Bar. It has been noticed that the trial was delayed because the learned defence counsel on one or two occasions requested for hearing of the case at D.1. Khan instead of Tank. The cited case of Amir v. The State 1991 P Cr. L J 534 Karachi is not helpful to the accused-petitioners. In the case of Ghulam Sarwar. v. The State (1990 SCMR 1045) bail was allowed by Supreme Court because in the refusal order of the High Court nowhere it was mentioned that accused-petitioner was hardened and dangerous criminal and was also not found so. Learned counsel for the accused-petitioners has cited this case to show that the accused-petitioners being not previous convicts or dangerous criminals, the provisions of fourth proviso to section 497, Cr.P.C. Are not attracted to their case. It may be so but fact of the matter is that the accused-petitioners are dangerous criminals as they are charged for the murder of the deceased. The words "dangerous criminal" used in fourth proviso to section 497, Cr.P.C. Should be understood in its ordinary sense meaning that person is involved in a serious crime. In this respect, I would support the view taken in the case of Jummo v. The State 1989 P Cr. L J 1235, that the word "or" is used in disjunctive sense and word "criminal" in fourth proviso should be understood in its ordinary sense meaning a person involved in a crime. The Court has to formulate its opinion as to the characteristic of the accused. In the case-law cited by the learned counsel for the accused- petitioners, this proposition of law was never considered as to whether an ordinary criminal against whom a serious charge of murder is brought is also entitled to bail under the third proviso to section 497, Cr.P.C. Only because he remained in detention for more than two years and the trial was not concluded. The law provides many considerations for the Court before the accused is granted bail on the basis of the third proviso to section 497, Cr.P.C. Bail matters are, therefore, to be dealt with in accordance with the facts and circumstances of each case. In a recently reported case of Nawab Ali v. The State PLD 1991 Peshawar 42, it has been held that conduct of the defence counsel seeking adjournment is an act of another person or behalf of the accused within the meaning of third proviso to section 497(1), Cr.P.C. I respectfully agree with the view taken in this case. The learned Additional Sessions Judge has rightly deducted the period of adjournments from the total period of detention and no exception could be taken to it. The delay in trial of the accused-petitioners has been occasioned by their counsel acting on their behalf. The case of the accused-petitioners also falls under the fourth proviso to section 497, Cr.P.C. The accused- petitioners are directly charged in the F.I.R. For the murder of the deceased and the motive for the offence is stated to be blood feud.
6. By my short order dated 29-6-1991, I had rejected bail of the accused-petitioners. Above are the reasons in support of that order.