ZIA MAHMOOD MIRZA, J: -- Petitioners whose bail application was dismissed by this Court vide order, dated 28-6-1988 have filed this application under section 561-A, Cr.P.C. Praying that `the order of 28-6-1988 being a nullity be recalled and a proper legal order be written and the applicants be admitted to bail'.
2. Facts forming the background of this application, briefly stated, are that a case under section 302/307/4(4/325/148/109, P.P.C. Was registered against the petitioner and three others at Police Station Jaranwala vide F.I.R. No.43, dated 9-2-1986. Ashiq Hussain, Akbar Ali and Bashir Ahmad petitioners were taken into custody on 28-2-1986 whereas Khalid Rashid petitioners was arrested on 26-8-1986. After usual investigation, petitioners and their co-accused were challaned. The challan was submitted in the Court of the learned Sessions Judge, Faisalabad who by his order, dated 6-10-1987 transferred the case to Mr. M.A. Shahid Siddiqui, Additional Sessions Judge for trial and directed the accused to appear before the trial Court on 8-10-1987. Petitioners and their co- accused (who were on bail) appeared before the learned Additional Sessions Judge on 8-10-1987 when the case was adjourned to 28-10-1987 and then to 5-11-1987 to enable the accused to engage their counsel. The last mentioned date happened to be a holiday. Case was, therefore, taken up on 7-11-1987 when the petitioners informed the learned Additional Sessions Judge that they intended to move the learned Sessions Judge for transfer of the case. Case was, therefore, adjourned to 23-11:1987. It appears that the case was actually transferred from the Court of Mr. MA.
Shahid Siddiqui. Additional Sessions Judge on 15-12-1987 and thereafter it remained pending for some time before the transferred Court where, too, no progress could be made from 20-12-1987 to 28-1-1988 on account of non-appearance of Akbar Ali, p4titioner who, it was stated, was taking BA.
Examination during the said period. The case was, however, finally transferred to the Special Court, Speedy Trials, Faisalabad vide order of the Provincial Government, dated 18-2-1986. Petitioners challenged this order in W.P. No.1005 of 1988 which came up for preliminary hearing on 28-2-1988 when the Special Court was directed not to pass any Final order adverse to the petitioners. It appears that the proceedings before the Special Court were subsequently stayed. In the meantime, however, the Special Court had examined as many as 13 witnesses from 5-3-1988 to 23-4-1988. Writ Petition has since been admitted to regular hearing and is being heard alongwith the numerous other connected matters from day to day.
3. Petitioners filed an application for bail (Criminal Miscellaneous No.1726/B of 1988) on the sole ground that despite the expire of more than two years, their trial has not concluded. They thus sought the bail on the statutory ground contained in third proviso to section 49','(1), Cr.P.C. It may pertinently be observed that since Khalid Rashid petitioner was arrested on 26-8-1986, statutory period of two years in his case had not yet expired and, therefore, his counsel did not press the prayer for his bail. Bail application qua him was accordingly dismissed on 22-6-1988. Application of the remaining petitioners, too, was dismissed by this Court on 28-6-1958 on the ground that they were themselves responsible for the delay in the finali7ation of the case. It was noted that no proceedings were taken by the learned trial Court (Mr. M.A. Shahid Siddiqui, Additional Sessions Judge) from 7-11-1987 to 15-12-1987 because of the transfer application filed by the petitioners and again no progress could be made from 20-12-1987 to 28-1-1988 for the reason that Akbar Ali petitioner was taking B.A. Examination and lie could not appear in this Court on that count. It was accordingly held that excluding these two periods attributable to the petitioners, two years had not yet elapsed when the case was transferred to the Special Court and then the petitioners filed writ petition in this Court in consequence whereof the proceedings before the Special Court were stayed. In the circumstances; it was held that the petitioners were not entitled to the concession of bail on the statutory ground contained in proviso (iii) to section 497(1), Cr.P.C.
4. The instant application has been filed mainly on the ground that the assertions made and the contentions raised by the petitioners' counsel at the time of hearing of the Gail petition have not been noticed/attended to in the order dated 28-6-1988 dismissing the bail application. It is pointed out that the petitioners counsel had contended that the delay attributable to the accused petitioners was not caused by them wilfully or, contumaciously- and, therefore, the same could not be taken into consideration for depriving them of the benefit of the statutory provision but this contention does not find mention in the order dated 28-6-1988. Further grievance made is that the petitioners' counsel had cited a case reported in PLD 1'967 SC 530 but despite this, it has been observed in the order, dated 28-6-1988 that the petitioners' counsel was unable to controvert the submissions of the learned Additional Advocate General.
It is stated in the application that it was urged by the petitioners counsel that the petitioners could not be held responsible for the time spent in seeking the transfer of the case since the transfer application was prompted by the conduct of the complainant party and the learned Additional Sessions Judge and the allegations made were found correct by the learned Sessions Judge who transferred the case. It is further stated that the petitioners' counsel had also pointed out that Akbar Ali accused had already taken the examination but the police failed to bring him back to Faisalabad and it was for this reason that the case had to be adjourned. It is also stated that the petitioners' counsel had vehemently urged that the State itself was responsible for the delay in the disposal of the petitioners' writ petition in so far as the learned Advocate-- General took adjournments for filing the reply in the writ petition but he failed to submit the same and on 25-4- 1988, he agreed to the stay of proceedings before the Special Court and subsequently writ petition was admitted to regular hearing. These points, it is complained, have not been adverted to in order dismissing the bail application.
5. We have heard the learned counsel for the parties. Learned counsel for the petitioners has reiterated the points noted in the preceding paragraph. Learned counsel for the complainant, on the other hand, has contended that the instant application is not maintainable. He has argued on the authority of PLD 1970 SC 335 that section 561-A, Cr.P.C. Can only be invoked if the order to the bail matter sought to be recalled is passed without jurisdiction or without affording any opportunity of being heard to the parties. It is submitted that the order of this Court dated 28-6-1988 does not suffer from any of these infirmities and, therefore, application under section 561-A, Cr.P.C. Is not competent. In the case cited by the learned counsel for the complainant, question raised was that in view of the provisions of section 369, Cr.P.C. High Court was not competent to recall its order cancelling the bail of the accused Their Lordships of the Supreme Court while accepting the proposition that the general principle of finality of judgment attaches to the decision or order of the High Court passed in criminal eases observed that this principle "will not apply to cases where an order is passed without jurisdiction or without giving any opportunity to the parties of being heard.
In such cases section 561-A, Cr.P.C. Can be invoked for the purpose of doing justice between the parties and for seeing that the act of the Court does no injury to any of the parties. This is an inherent power of the Court and has been preserved by the above provision of law. In my opinion in rare and exceptional cases the High Court has inherent power to revoke, review or alter its own earlier decisions in cases which are not governed by sections 369, 424 and 430, Cr.P.C. With a view to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It is, however, not possible to enumerate the circumstances in which this provision can be invoked". It is quite clear from these observations that the inherent power of this Court preserved by section 561-A. Cr.P.C. Is not confined only to those cases where the orders are passed without jurisdiction or without hearing the parties affected thereby. It can well be invoked in all such where the ends of justice so demand.
6. Before proceeding further, it may pertinently be observed that in the bail petition, we had heard the learned counsel for the petitioners and the complainant as-.Also the learned Additional Advocate-General at full length. We had also perused the order-sheet of the trial Court (Additional Sessions Judge) produced before us and taken notice of the proceedings in the writ petition filed by the petitioners and the consequential delay in the trial before the Special Court. The order-sheet of the learned Additional Sessions Judge supported the stand taken by the complainant's counsel that the petitioners themselves were responsible for the delay of 2 months and 16 days occasioned by the transfer application moved by them (time spent therein being from 7-11-1987 to 15-12-1987) and then by non-appearance of Akbar Ali accused from 20-12-1987 to 28-1-1988. We had also examined the authority cited by the learned counsel for the petitioners and observed that the precedent case was of no help to the petitioners as it related to a rent matter and it interpreted the term `default' used in section 13(6) of .The Rent Restriction Ordinance which term is not employed in the third proviso to section 497(1), Cr.P.C. As the delay before, the learned Additional Sessions Judge and subsequently before the Special Court as a consequence of the writ petition filed by the petitioners was a matter of record, the same could not be controverted by the petitioners' counsel and, therefore, it was observed by us that "Learned counsel for the petitioners has not been able to controvert these submissions of the learned Additional Advocate-General and consequently bail petition was dismissed". Be that as it may, since the petitioners have now made a grievance that the contentions raised by their counsel have not been attended to in the order dismissing their bail petition, which contention on the face of it is, of course, correct, we have thought it appropriate and in the interest of justice to entertain the instant application so as to deal with the aforenoted contentions specifically.
7. We first take up the factual points taken in the present application. Transfer of the case was admittedly sought by the petitioners and, therefore, delay in the trial caused thereby was obviously their responsibility. It is hot quite correct that the allegations made by the petitioners in the transfer application were found true by the learned Sessions Judge. The petitioners' counsel had read out the order of the learned Sessions Judge whereby case was transferred from the Court of Mr. MA.
Shahid Siddiqui, Additional Sessions Judge. Therein, no such finding was recorded. Next allegation of the petitioners that the police had failed to bring back Akbar Ali accused to Faisalabad soon after he had completed his examination which resulted in the adjournment of the case is also not borne out from the record. Order of the trial Court dated 20-12-1987 shows that Mukhtar accused, the real brother of Akbar Ali accused stated on that date that Akbar Ali accused would be free from taking B.A. Examination by 25-1-1988. Case was accordingly adjourned from 20-12-1987 to 28-1- 1988 for necessary proceedings in the a presence of all the accused persons. It appears from the order-sheet of the trial Court that Akbar Ali accused was not present on 28-1-1988 and it was stated rather complained by the complainant's counsel on the basis of the Date-sheet that all the papers in which the said accused was to appear had ended on 19-1-1988. It was, therefore, directed by the learned trial Judge on 28-1-1988 `Akbar Ali accused be summoned from the District Jail and Central Jail, Faisalabad for 1-2-1988'. On the last mentioned date, it transpired that Akbar Ali accused had been transferred from Central Jail, Faisalabad to District Jail, Lahore r enable him to take B.A., examination whereas he was summoned from the local jail. It was further noted in the order, dated 1-2-1988 "The Jailor of Central Jail, Faisalabad his asked the Jailor of District Jail, Lahore for immediate repatriation of Akbar Ali accused to the local Central Jail. The requisite repatriation has yet to take place as the aforesaid letter was despatched on 31-1-1988 by the Jailor of Central Jail, Faisalabad". It may be observed that the delay in producing Akbar Ali accused after 28-1-1988, even if on account of the failure of the police or jail authorities is not relevant as it was not taken into consideration in our order, dated 28-6-1988. The fact, however, remains that the case was, adjourned from 20-12-1987 to 28-1-1988 on the statement of Mukhtar accused that his brother Akbar Ali would be free from the examination by 25-1-1988. This adjournment was thus clearly on account of the accused petitioner acid It was thus treated as his act resulting in the delay. Similarly proceedings before the Special Court for Speedy Trials were also held till and the trial could not conclude because of the writ petition filed by the petitioner; and stay Order issued therein. It may, however, pertinently be observed that before the stay of the proceedings, the Special Court had examined 13 witnesses from 5-3-1188 to 23-4-1988.
8. Now to examine the main contention of the petitioners' counsel that since the delay attributed to the petitioners was not caused by them wilfully or contumaciously, they could not be deprived of the statutory concession enacted in the third proviso to section 497(1), Cr.P.C. He has argued that the petitioners could be denied the concession of bail claimed on the statutory ground only if the delay in the trial had occurred on account of any mala fide act or omissions on their part.
According to the counsel, the time spent .In taking recourse to lawful remedies could not be debited to the petitioners' account so as to disentitle them to the grant of bail on the statutory ground. In support of his submission, learned counsel has relied upon the afore-referred judgment of the Supreme Court reported in PLD 1967 SC 530. He has also referred to Craies on Statute Law (Seventh Edition) page 65 to contend that in construing a statute, its object and the intention of the law--maker expressed by the words used should be considered. Precise argument of the learned counsel is that keeping in view the object of the proviso afore-- referred, the words 'act' or 'omission' used therein should be interpreted to mean mala fide act or omission or an act or omission deliberately intended to delay the proceedings.
We have given our anxious consideration to the arguments of the learned counsel but we have not felt persuaded to subscribe to his view. We find no justification to depart from the ordinary and natural meaning of the words used by the Legislature and to add thereto the concept of mala fide and bona fide. It is an accepted principle of interpretation of statutes that "if the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense. The words themselves alone do in such a case best declare the intention of law giver". Refer Craies on Statute Law page:
66. Again at page 70 of the same treatise it is gated that a statute may not be extended to meet a case for which provision has clearly and undoubtedly not been made In R. v. Wimbledon Justices, ex p. Derwent (1953 1 Q.B. 380 (D.C.), Lord Goddard, C.J. Said: "Although in construing an Act of Parliament the Court must always try to give effect to the intention of the Act and must look not only at the remedy provided but also at the mischief aimed at, it cannot add words to a statute or read words into it which are not there ... "Again, in R. v. Oakes 1959 2 O.B. 350 (CCA), Lords Parker, C.J. Said: "Where the literal reading of a statute ... Produces an intelligible result ... There is no ground for reading in words or changing words according to what may be the supposed intention of .Parliament". Ref, trice may also usefully be made -to the celebrated work of Maxwell on the Interpretation of Statutes (Eleventh Edition) wherein it is, stated at page 4 'When the language is not only plain but admits of but one meaning, the task of interpretation can hardly be said to arise.
It is not allowable, says Vattel, to interpret what has, no need of interpretation. Absoluta sententia expositore non-indiget. Such language best declares, without more, the intention of the law giver, and is decisive of it. The rule of construction is to intend the legislature to have meant what they have actually expressed'. It matters not, in such a case, what the consequences may be. Where by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the Legislature, it must fig enforced, even though it be absurd or mischievous. Toe underlying principle is that the meaning and intention of a statute must be collected from the plain and unambiguous expression used therein rather than from any notions which may be entertained by the Court as to what is just or expedient".
Language of the third proviso to section-497, Cr.P.C. Is quite plain and clear. Relevant portion of the proviso reads "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) ...........................................................................................................................
(b) who, being, accused of an offence punishable with death has been detained for such offence for continuous period exceeding two years and whose trial for such offence has not concluded."
The aforequoted proviso quite clearly lays down that the right to be released on bail extended to an accessed can be denied to him if the delay in the finalization of the trial has been occasioned by an act or omission on his part. Now the words 'act or omission' are to be understood in their ordinary sense. Dictionary meaning of the word 'act' is -- A thing done, a deed, fact or reality; opp to intention, possibility. These words by no stretch of reasoning or rule of construction can be given a meaning canvassed by the learned counsel for the petitioners. We cannot read in the proviso something which the Legislature has not provided. The intention or motive of the accused is not required to be gone into. All that is necessary is to see whether the thing done or omitted by the accused has in fact resulted in the delay in the trial. For instance, an adjournment sought by the accused even for good reasons will constitute an act of the accused for the purpose of the exception contained in the aforementioned proviso. Reliance by the learned counsel for the petitioners on PLD 1967 SC 530 is also of no help to him as in the precedent case, the term default used in section 13(6) of the Rent Restriction Ordinance was interpreted whereas in the instant case no such term is used.
In the aforesaid view of the matter, we see no good reasons to recall our order, dated 28-6-1988 dismissing the bail petition of the petitioners. The instant application moved under 561-A, Cr.P.C. Is accordingly dismissed.
N.H.Q./S-163/L