ORDER CHAUDHARY MUHAMMAD TAJ, J. - The above titled two petitions arise out of. The same matter, as such, are disposed of by this common order.
2. The above petitions have been filed against the order passed by the District Criminal Court, Mirpur, passed on March 17,1997. Whereby bail was declined to the accused-petitioners.
3. The facts briefly stated are that a case .Under Sections 5/15, Islamic Penal Laws Act read with Sections 460/307, 34, APC, 13/20/65, Arms Act, and 17(3), Offences Against Property (Enforcement of Hudood) Act, was registered against the accused-petitioners and other accused, at Police Station Mirpur, on February 02, 1995, for which a challan was forwarded to the District Criminal Court, Mirpur which is pending there. The accused-petitioners, after an amendment in Section 497, Cr.P.C, through an Amendment Ordinance of 1996, made by the President of Azad Jammu and Kashmir, moved the trial Court for the grant of their bail which was disallowed. Hence these petitions.
4. Ch. Muhammad Azam Khan, Mr. Riaz Alam and Syed Mazhar Kaleem Shah, the learned Counsel for the petitioners, raised the following points in support of their petitions:-
(i) That the accused-petitioners, in view oj the amendment incorporated in Section 497, Cr.P.C, were entitled to be released on bail. The trial Court without applying its mind, rejected their Plea of bail, without advancing any reason;
(ii) that the subordinate Court computed the detention of the accused-petitioners from the date the challan was submitted in the trial Court and failed to consider the same from the date of detention or arrest of the accused-petitioners, as such, the order is illegal;
(iii) that the Court below while computing the period of detention, wrongly excluded the period for which the accused-petitioners cannot be held responsible. It was explained that the trial Court excluded the period for which the adjournments were due to occupation of the Counsel representing the accused-petitioners or there was nothing to be done by the Court when the case was adjourned, as such the accused could not be burdened for it. The learned Counsel referred to 1990 P.Cr.L.J. 2051, 1991 P.Cr.L.J. 534, 1995 P.Cr.L.J. 693 and 1996 P.Cr.L.J. 298, in support of their assertions.
5. On the other hand, Ch. Muhammad Sharif Tariq and Ch. Muhammad Mushtaq, Additional Advocate General, representing the respondent, while controverting the arguments advanced by the learned Counsel for the petitioners, opposed the petitions in the following manner: -
(i) . That by virtue of amendment effected in Section 497, Cr.P.C., the accused-petitioners were not entitled to the concession of bail as a matter of right. It was the discretion of the Court which was to be exercised keeping in view the circumstances of the case. The prohibition contained in Section 497, Cr.P.C, for bail to an accused person involved in an offence punishable with death or transportation for life, was relaxed by a proviso incorporated through the Amending Ordinance;
(ii) . That the amendment effected through the Ordinance has ceased to exist for the Ordinance having lapsed after completing its life, as such, the same was not a part of the statute now.
Therefore, the accused-petitioners are not entitled to the concession of bail; and
(iii) . That alternatively, the accused-petitioners were not entitled to the concession of bail as they were responsible for causing delay which has occasioned by their acts. It was explained that the delay in the trial had occasioned by their acts appearing in the interim orders recorded on 17-09- 1995, 17-10-1995, 9-07-1996, 16-07-1996 and 9-9-1996. The learned Counsel referred to the Amending Ordinance in support of their assertions.
6. I have heard the learned Counsel for the parties and also gone through the record. The accused- petitioners applied for the grant of their bail on the ground of amendment made in Section 497, Cr.P.C. , whereby a proviso was added. The accused-petitioners were arrested on February l2, 1995.
The trial Court refused bail on the ground that the delay in the trial of the accused has occasioned by the acts of the accused or the persons acting on their behalf, while calculating the period of detention from the date of presentation of challan.
7. Before entering upon the merits dealing with the proposition in hand, it would be appropriate to state that while computing the. Period of arrest or detention, it was not the date of presentation of challan but the date when the accused-petitioners were arrested which is to be taken into consideration. Therefore, the observation made by the trial Court in this regard, is not in consonance with law. Reliance in this regard may also be placed on 1983 S. C. M. R. 427 (Waztr Khan v. The State), wherein it was held as under:- -S. 497(1), third proviso, cl. (b)-Bail-Petitioner in jail for over two years and trial not yet commenced for inability of Police to apprehend his co-accused, an employee of Pakistan Army and Military Authorities refusing to surrender his custody-Delay occurring, in commencement of trial neither attributable to petitioner nor any person acting on his behalf-Held, petitioner should not suffer merely because police unable to apprehend co- accused-Petitioner released on bail in circumstances of case."
8. Next, the question arises whether in view of the amendment incorporated in Section 497, Cr.P.C, by adding a Proviso, an accused is entitled to the grant of bail as a matter of right, as contended by the learned Counsel for the accused-petitioner. To appreciate the proposition, it would be useful to reproduce the relevant law which is as ur. Der:- "2. Amendment of Section 497, Act V of 1898. - In the Code of Criminal Procedure, 1898 (Act V of 1898), as enforced in Azad Jammu and Kashmir, in sub-section (1) of Section 497, in the second proviso, for the full stop at the end, a colon shall be substituted and thereafter the following proviso shall be added, namely: "Provided further that not withstanding anything contained in , Section 27 of the Azad Jammu and Kashmir Islami (Tazirati) Qawanin Nafaz Act, 1974, the Court may, except where it is of the 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 may 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 had 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: Provided further that the provisions of the third proviso to this sub-section shall not apply to a previously convicted offender' for an offence - punishable- with death or imprisonment for life or to a person who,-
(a) in the opinion of the1 Court, is a hardened, desperate or dangerous criminal or involved in terrorism;
(b) is not a State Subject of Azad Jammu and Kashmir; or
(c) a State Subject of Azad Jammu and Kashmir residing in Pakistan."
9. A perusal of the above referred provisions reveals that further proviso has been provided whereby prohibition contained in sub-section (1) of Section 497, Cr.P.C, for the grant of bail in non- bailable, offences carrying the death penalty or transportation for life, was removed .And the Court was empowered to release an accused on bail, in the cases carrying death penalty or otherwise in non-bailable offences where a person accused of such .Offence punishable with death is detained for continuous period exceeding two years and the accused involved in a non-bailable offence not carrying the death penalty, is detained for such offence for continuous period of one year and the trial for such offence has not concluded except where in the opinion of the Court, 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. It was further provided that the proviso referred to above would not apply to previously convicted offender for an offence punishable with death or imprisonment for life, or an accused, in the opinion of the Court, is hardened, desperate or dangerous criminal or involved in terrorism,' or is not State Subject of Azad-Jammu and Kashmir, or a State Subject residing in Pakistan. The analysis of the provisions shows that it is discretionary with the Court which has to be exercised keeping in view the cautions and checks provided therein, in the light of the judicial principles. Therefore, the claim of the accused-petitioners to be released on bail as a matter of right, contending the word used as "may" to be read as "shall", is without any substance.
10. It was contended by the learned Counsel for the petitioners that the delay even if occasioned in conclusion of the trial on certain dates, either due to occupation of the Counsel in some other Court or the reasons not relatable to the accused, cannot be attributed to them. The learned Counsel, particularly the Counsel representing Afaaq Anjam, accused argued that the adjournment made on 17-10-1995 was due to the Counsel being occupied in some other Court.
Similarly, the other adjournments made by the Court, referred to by the learned Counsel for the complainant and the State, also cannot be attributed to the accused for any delay.
11. It may be stated that the legislature has burdened the prosecution for completing the trial for the offences punishable with death or those not carrying death penalty, referred to above, within two 'years and one year respectively and failing to complete the same within the said period, the Court was empowered to release the accused on bail provided the accused himself was not responsible for delay in conclusion of the trial. Therefore, it follows that if in any case, due to an act or omission of the accused or any person acting on his behalf, the delay is caused, that shall not be counted towards the delay caused by the prosecution and would disentitle the accused to avail the concession of bail under the relevant provisions of law. The case- law referred to by the learned Counsel for the accused-petitioners, 1990 P.Cr.L.J. 2051, 1991 P.Cr.L.J. 534 and 1995 P.Cr.L.J. 693, with its distinct facts, is not applicable to the case in hand, as such no reliance can be placed on it. It would be relevant to mention that in 1990 P.Cr.L.J. 2051, the bail was allowed on the ground that the charge was not framed in the relevant case and the period of 2 years was completed. The learned Additional Advocate General appearing for the opposite side, also did not oppose it. The other case, 1991 P.Cr.L.J. 534, is also of no avail to the accused-petitioners as in that case, after excluding the period for which the adjournment was sought, the statutory period was completed. Therefore, the question of adjournment sought on the basis of illness of the Counsel or otherwise due to occupation of the Counsel in other Court, was of a little significance. The authority reported as- 1995 P.Cr.L.J. 693 is also not relevant as the same deals with the grant of bail, as it appears, of an accused person who was with the police for a period of two years and the Court did not hold the accused responsible for inordinate delay. The authority, 1996 P.Cr.L.J. 298, is not relevant to the proposition debated in the case.
12. It may also be stated that the legislature has codified the law which earlier prevailed with regard to the grant of bail on the ground of delay in cases specified in the aforesaid proviso of Section 497, Cr.P.C. The adjournment sought on the grounds, such as illness of the Counsel or his occupation in the superior Courts, in normal course of law, is not held to be an inordinate delay but is not helpful to the accused-petitioner under the aforesaid enactment as the accused has been held dis- entitled to the concession of bail if any delay due to his act or omission or any person acting on his behalf is occasioned in completing the trial within two years or one year in cases of death penalty or other non-bailable offences not caning the death penalty respectively, as the case may be, by the prosecution. Reliance in this regard may also be placed on 1984 S.C.M.R. 613 (Shouki v. State) wherein it was held in para 6 at page 615, as under: - "6. The case of two other appellants viz. Shall Muhammad, however, stands on a different footing.
We find no force in the contention that merely because the Court granted the adjournment on an application submitted by the accused, the blame cannot be attributed to such an accused for whose benefit the adjournment was granted. The fact that counsel representing the accused is busy with other professional work and is unable to attend the trial of tha accused will not spig facto be construed a justification for delaying the trial. The accused has no doubt right to be represented by the counsel of his choice but if he has chosen a counsel who is frequently busy with other work, he cannot be heard to say that the delay was not occasioned on account of his acts or omissions of other persons acting on behalf of the accused. It is for the counsel of the accused to arrange his cases in such a manner so as to save his client from consequences provided by law in the delay of the trial."
13. In another case titled Akhtar Abbas v. The State (PLD 1982 S.C. 424), the Supreme Court of Pakistan, while dealing with the relevant proposition, observed as follows;- "-S. 497-Bail-Delay due to seeking adjournments-Interstition of law-Not calculation of amount of delay caused by defence-Court to see whether finalization of trial in any manner delayed by an act or omission on part of accused-Adjournments sought by defence for one reason or other at least on eight occasions and delay partly attributable to accused-Order sheet of trial Court showing most of witnesses having been present on dates of hearing and their examination postponed owing to request made by defence counsel--High Court, held, right in exercising its discretion against petitioner in matter of grant of bail in circumstances."
14. A similar proposition came Under consideration before the Karachi jurisdiction, in 1986 P.Cr.L.J.
1246 (Muhammad Yousuf v. The State) wherein the following observation was made:- "-As regards the third contention, it will be observed that the third proviso to Section 497, Cr.P.C, is extendable to an accused person who has been detained for a continuous period exceeding two years and his trial has not been concluded, provided the delay in the trial has not occasioned due to an act or omission on the part of-the accused or any other person acting on his behalf."
15. In the instant case, the accused were arrested on February 20, 1995. The ing bail to the accused- petitioners was recorded on March 17, 1997. The Ordinance lapsed after living its life on March 18, 1997. The accused-petitioners, on 17-9-1995, 17-10-1995, 9-7-1996, 16-7-1996 and 9-9-1996 sought adjournments either due to their own or through their Counsel. The last three adjournments related to Allah Ditta and Zulfiqar accused. After excluding the period of delay occasioned by the accused, the period of detention of the accused-petitioners on the day of announcement of the order of on the day the Ordinance was lapsed, cannot be calculated as two years. Therefore, it can safely be held that the accused-petitioners are not entitled to the concession of bail under the proviso, without adverting to the other merits involving the latter pail of the proviso dealing with the convict or hardened and dangerous criminals etc. , as no arguments were addressed in this behalf by the respective parties. The order passed by the trial Court, therefore, warrants no interference by this Court. Consequently, the petitions, in the circumstances, are found to have no substance which are hereby dismissed.