' Petitioners Abbas Khan, Mir Baz Khan, Akbar Zaman and Abdul Jalil of Jang Khel Pezu involved in case under section 302/34, P.P.C. Through F.I.R. No,282, dated 25-12-1992 of Police Station Pezu, having been arrested on 27-1-1993 and having once been refused bail by this Court on 16-4-1994, have applied afresh under proviso III to section 497, Cr.P.C. Claiming that they have already suffered a detention for 29 months without the conclusion of their trial.
2. The order, dated 16-4-1994 was passed by myself when I was at Circuit Bench, D.I. Khan. This second petition, under principle reported in PLD 1986 SC 173, was directed by honourable Mr. Justice Qazi Muhammad Farooq then on tour to D.I. Khan, to be fixed before me. It was alright so long as I remained at Circuit Bench, D.I. Khan but after my withdrawal therefrom it was not at all necessary that the petitions should follow my track even if I happened to go to Abbottabad.
3. For newly amended section 497, Cr.P.C. Through Act XIX of 1994, all the delay 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 the law, is liable to be counted against the accused. In view of the said principle a considerable amount of delay in the instant case has been occasioned by the accused, no doubt in the exercise of any right sanctioned to him under the law. From 27-4-1993 to 26-7-1993 (3 months) it was delayed in connection with reinvestigation applied for by the accused. From 14-6- 1993 to 10-7-1993 (26 days) the matter was delayed in a bail petition that stood withdrawn. From 12-9-1993 to 26-9-1993 (14 days) were consumed in bail application before Magistrate. From 27-9- 1993 to 3-11-1993 (1 month 6 days) were consumed before Court of Session and similarly 64 days before High Court with effect from 12-2-1994 to 16-4-1994 and again 38 days before the Court of Sessions for another application under proviso 3rd with effect from 29-1-1995 to 8-3-1995.
4. As per calculation, out of total period of detention of 29 months, the delay of 9 months is occasioned by the accused leaving the burden of only 20 months on the prosecution. The application is not hit by 3rd proviso to section 497, Cr.P.C. As yet. If the accused sit quiet for another 4 months, it might benefit them. The application is rejected.