Muhammad Yaqub, accused-respondent is facing trial on the charge of murder, in the District Criminal Court, Mirpur. The incident of murder took place on December 29, 1989, at 1 p.m. in village Doodh Parat, Police Station Dadyal. The accused was apprehended the next day and since then remained in the judicial lock-up, till the time of his release on March 5, 1992. The bail was allowed to the accused by virtue of amendment of section 497, Cr.P.C., enforced through an amendment Ordinance. This order has been assailed in the present appeal.
2. Ch, Muhammad Taj, the learned counsel for the appellant contended that the trial Court misdirected itself in calculating the stipulated period for the release of the accused. Movcover, It was emphasised that it was not obligatory for the Court to release the accused in the light of the proviso introduced through amendment. Mr Muhammad Abdul Khalil] Ansari, the learned counsel for defence, supported the impugned order and argued that the period of detention of the accused exceeded 2 years of his detention, as such the trial Court rightly ordered his release.
3. Section 497 (1), Cr.P.C. postulates that a person accused of non-bailable offence shall not be released when there appear reasonable grounds for believing that he has been guilty of offence punishable with death or life imprisonment. The exception to the rule was introduced to the benefit of minor below 16 years, woman, sick or infirm person. By recent amendment, the third proviso was introduced whereby it was provided that the Court may direct any person to be released on bail who being accused of offence punishable with death, has been detained for such offence for a continuous period exceeding 2 years and whose trial for such offence has not concluded.
4. The legislature used the word "may" with reference to authority of the Court and provided that the Court was empowered to exercise its power for the release of a person accused of offence punishable with death provided the period of his detention exceeded 2 years and the trial was yet incomplete. It was pointed out that the use of "may" was not mandatory, as such the Court was not under obligation to release the accused necessarily on fulfilment of the condition of stipulated period of detention. The Court was empowered to decline the release of an accused despite his detention exceeding 2 years and incompletion of the trial, in the light of the facts of each case. The counter-contention was that the "may" denoted the spirit of mandatory provision leaving no discretion of the Court. Thus the Court was under obligation to release the accused when the period of detention of 2 years exceeded and the trial was not concluded.
5. The rule of interpretation of statutory provisions of law postulates that while construing the provisions of law, it has to be construed in its ordinary meaning. Therefore, it is expedient to advert to ordinary meaning of the term "may", in order to ascertain, its scope with reference to the context, to determine the power of the Court, to grant release of accused. According to `Black's Law Dictionary', the word "may" has been defined as:- "---Regardless of the instrument, however, whether Constitution, statute, deed, contract or whatever, Courts infrequently construe "may" as "shall" or "must" to the end that justice may not be the slave of grammar. However, as a general rule, the word "may" will not be treated as a word of command unless there is something in context or subject-matter of act to indicate that it was used in such sense,--In construction of statutes and presumably also in construction of federal rules word "may" as opposed to "shall" is indicative of discretion or choice between two or more alternatives, but context in which word appears must be controlling factor."
The word "may" was construed by Crawford (Statutory Construction)as:-- "May.--" 'May' ordinarily denotes permission and not command. Where the word as used in a statute concerns the public interest or affects the rights of third person, it will be construed to mean `muse."
6. It is evident from the aforesaid interpretation of the word "may" that it has to be construed with reference to context. It may be construed to denote the discretion conferred on a tribunal or authority and when used in different context, it may reflect the spirit of command and may carry the meaning of word "shall". When it is used in a statute which concerns the public interest or affects the rights of third person, it shall be construed and be treated as a word of command. In other cases, it has to be construed as a discretion exercisable by a tribunal or an authority. Thus, the word "may" is capable of alternative meaning and it is to be construed in the light of context.
7. In the present case, the word "may" has been used in the rule of procedure which confers authority on the Court, for the release of an accused of offence punishable with death. The power of the Court is to be exercised only in a case where the condition of stipulated period of more than 2 years is fulfilled. It is, therefore, permissible to construe the meaning and scope of the word "may" with reference to the condition laid down under the proviso.
8. The other relevant aspect of the proposition is that delay in conclusion of trial may occasion due to fault of the prosecution, negligence of Court or conduct of the accused. It is, therefore, quite relevant to appreciate the act of delay with reference to attitude of the parties as well as the Court.
The intention of legislature appears to be that delay of more than 2 years in conclusion of trial in case of a person accused of offence punishable with death when occurs due to fault of the prosecution or the Court, as a rule of justice, the accused may not suffer his detention due to such fault or omission on the part of other party. Conversely, when delay in conclusion of trial within a period of 2 years is shown to have occasioned due to the fault of the accused, in such case, the accused cannot avail the concession of the proviso, in his release. If such a practice is followed, then obviously, every accused facing trial on the charge of offence punishable with death, would be encouraged to adopt dilatory tactics to delay the conclusion of the trial and on completion of more than 2 years, would seek his release by virtue of proviso. This Court was vested with a discretionary authority to grant the release of an accused provided it was satisfied that the delay had not occasioned ,-brinala fides of defence but otherwise. In this view of the matter, the scope of meaning of the word "may" has to be accepted as discretion conferred on the Court for the release of an C accused in an appropriate case. An identical view was held by the learned Judge Shariat Court, in another case titled "Ali Asghar v. State", decided on April 1, 1992.
9. It is noticed that the accused remained in detention for more than 2 years and delay has not occasioned due to his fault or omission. In the circumstances, the order of the lower Court is not found defective. The appeal is, therefore, dismissed.