1. ' SAEEDUZZAMAN SIDDIQUI, J.--The petitioner has sought leave to appeal in the above petition against the order of a learned Judge in Chambers of Lahore High Court dated 29-9-1994 whereby the petitioner's request for grant of bail under the 3rd proviso to section 497, Cr.P.C. In a case pending against him under sections 324/34 and 337-F, P.P.C. Was declined.
2. ' When the above petition came up for hearing before us on 4-12-1994, after notice to State and the complainant, were inclined to admit the petitioner to bail after hearing the learned counsel for the parties, however, we were informed by the learned counsel for the complainant that the case before the trial Court is fixed on 6-12-1994, and it is likely to conclude on that date. We accordingly adjourned the hearing of the petition to 7-12-1994. On 7-12-1994 we were informed that the trial could not be concluded and it is likely to take some more time. We, accordingly heard the learned counsel for the parties and the State, converted the petition into appeal, allowed it, and admitted the petitioner/appellant to bail in the sum of Rs, one lac with one surety in the like amount to the satisfaction of trial Court by a short order. These are detailed reasons for one short order.
3. ' The appellant was arrested in the case (F.I.R. No,337 dated 14-6-1993) under section 324/34, P.P.C.
4. And section 337-F(ii), P.P.C. On 18-6-1993. Challan in the case was submitted before the trial Court on 12-10-1993. The appellant applied for enlargement on bail on the expiry of one year's period from the date of, his arrest under the 3rd proviso to section 497(1), Cr.P.C. Which was declined by the learned Judge in Chambers as follows:-- "5. After hearing learned counsel for the parties, I am of the view that delay in the conclusion of the trial is not exclusively attributable to the prosecution. Proceedings were protracted on account of the summoning of an accused placed in column No,2. The petitioner is alleged to have caused a Chhuri injury on a vital part of the body of Shabbir Ahmed injured. The said injury was declared grievous.
6. In this view of the matter, I do not consider him entitled to the concession of bail and accordingly dismiss his application."
5. ' The learned counsel for the complainant and the State opposed the grant of bail to .The appellant on the ground that the delay in the conclusion of trial had occasioned on account of the conduct of the appellant and, therefore, he is not entitled to the concession of bail under the 3rd proviso to section 497(1), Cr.P.C. The learned counsel for the complainant also contended that the appellant was rightly refused bail by the learned Judge in Chambers as his conduct in the case was very aggressive and he even went to the extent of abusing and fighting with the complainant's counsel during the proceedings of the case before the trial Court.
6. ' As to the first objection of learned counsel for the complainant that the delay in the conclusion of trial had occasioned on account of conduct of the appellant in the case, it is not borne out from the diary of the case placed before us. According to case diary the Challan was put up before the Court on 12-10-1993 and between the period from 12-10-1993 to 14-5-1993 the case was adjourned only on two occasions at the request of appellant. The first adjournment was granted on 20-10- 1993 for a period of 3 days when the appellant asked for time to argue himself the charge in the case. The second adjournment at the request of appellant was granted by the Court on 7-11-1993 for 14 days on the application of appellant wherein he requested the Court to first enquire from his unit in the Army where he was employed as a driver whether he should be tried before a Civil Court or not. Barring these two adjournments, the case was adjourned on all other dates for reasons not attributable to the appellant. The learned Judge in Chambers while holding in the impugned judgment that the delay in conclusion of trial was not wholly attributable to the prosecution observed that the trial was protracted on account of summoning of the co-accused in the case shown in column No,2 of the challan. The reason for delay in the trial noticed by the learned Judge in Chambers was hardly attributable to the conduct of appellant or of a person acting on behalf of the appellant. The other reason for refusing bail to appellant given by the learned Judge in Chambers was that the injury caused by the appellant was on the vital part of the body and it was declared grievous by the doctor. This reason was hardly relevant for refusing bail to the appellant under the 3rd proviso to section 497(1), Cr.P.C. Which reads as follows:-- "... ...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 or in exercise of any right or privilege under any law for the time being in force, 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: ' Provided further that the provisions of the third proviso to this subsection shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal or involved in terrorism."
7. The right of an accused to be enlarged on bail under the 3rd proviso to section 497(1), Cr.P.C. Is a statutory right which cannot be denied under the discretionary power of the Court to grant bail.
8. The right of an accused to get bail under the 3rd proviso of section 497(1), Cr.P.C. Is not left to the discretion of the Court but is controlled by that provision. The bail under the 3rd proviso (ibid) can be refused to an accused by the Court only on the ground that the delay in the conclusion of the trial had occasioned on account of any act or omission of the accused or any other person setting on his behalf. The bail under the 3rd proviso ibid can also be refused by the Court if the case of the accused fell under the 4th proviso to section 497(1), Cr.P.C. In all other cases the Court must grant bail. In the case of Wazir Khan v. State 1983 SCM R 427, the petitioner was refused bail by the High Court under the 3rd proviso to section 497, Cr.P.C. On the ground that the delay in the trial had occasioned on account of abscondence of the co-accused in the case. This Court while admitting the petitioner in that case to bail observed as follows:-- "We issued notice to the State and have heard both the learned counsel for the petitioner as well as the learned counsel appearing on behalf of the State. The latter infomed that Muhammad Khan, co-accused who is a Naik in the Pakistan Army has, indeed not been apprehended and the reason for the inability of the police to arrest him is that the Military authorities have refused to surrender his custody. From this it is obvious that the delay which has occurred in the commencement of the trial is neither attributable to the petitioner nor to any other person 'acting on his behalf' and it is not proper that the petitioner should suffer merely because the police is unable to apprehend Muhammad Khan, co-accused. The petition is, therefore, converted into appeal and allowed.
3. The petitioner is released on bail in the sum of Rs,20,000 (Rupees twenty thousand only), with two sureties, each in the alike amount to the satisfaction of Assistant Commissioner/Duty Magistrate, Mianwali."
9. ' In the case of Nazir Hussain v. Ziaul Haq and others (1983 SCM R 72), this Court while considering the nature of the right of the accused to be enlarged on bail under the 3rd proviso to section 496, Cr.P.C. Observed as follows:-- "9. The ground of delay for grant of bail in cases falling within the prohibition contained in subsection (1) of section 497, Cr.P.C. Before the effective amendment, was undoubtedly controlled by the discretion of the Court concerned. The facts varied from case to case and accordingly the discretion exercised was creating some anomalies. That is why the legislature intervened and the law was made more certain. One of the changes affected in the statute from the previous practice in the exercise of discretion, was that the grant of ball on expiry of certain specified period and under certain conditions was made a matter of right and not only of discretion. We do not agree with the learned counsel that the use of the word shall in the third proviso, is in the meaning of 'may'. Learned counsel failed to notice that while in first proviso the word 'may' has been used, in the second and third the word 'shall' has been used with a view to highlight it. Moreover, reading 'may' for the word 'shall' in third proviso would be in large majority of cases to the detriment of the accused and his liberty, when it become due in the context of bail. We accordingly repel the argument of the learned counsel and hold that word shall in third proviso will have to be read in its ordinary sense. That being so, there is nothing in the entire proviso, its main part as also sub-clause
(b) to show the grant of bail on ground of delay in cases covered thereunder has been left (in a general way) to the discretion of the Court. We also do not agree with the argument that the matter being entirely of the discretion of the Court it is empowered to take into account the expected/apprehended delay."
10. The other contention of the learned counsel for the complainant that the appellant is not entitled to the concession of bail under the 3rd proviso to section 497(1), Cr.P.C. As he behaved aggressively in Court and had gone to the extent of fighting with the counsel for complainant is equally without any merit. Firstly, the appellant was not refused bail in the case by the learned Judge in Chambers on this ground and secondly, the petitioner could be denied the concession of bail under the 3rd proviso ibid on this ground if his case was covered by the 4th proviso to section 497(1), Cr.P.C.
11. ' In view of the above discussed legal position, we allow the appeal, set aside the order of High Court and admit the appellant to bail in the sum of Rs,one lac with one surety in the like amount to the satisfaction of trial Court.
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