' MUHAMMAD YUNUS SURAKHVI, J.--- This appeal has been directed against an order passed by the Shariat Court of Azad Jammu and Kashmir on August 28, 1997, whereby the concession of bail to the appellant was declined.
2. The precise facts, giving rise to the present appeal, are that a case under sections 302, 341, A.P.C.
Read with section 5, Islamic Penal Laws Enforcement Act was registered against the appellant at Police Station Tarar Khul on 5-5-1992 on the report of one Abdul Rehman alleging therein that Muhammad Riaz, accused-appellant, had killed his father, Muhammad Hanif, by firing a gun shot.
It is claimed that the accused, who was serving in Army, absconded immediately after the occurrence and reported back on his duty. However, he was apprehended by the police in the aforesaid offences on 26th of April, 1993. The police after necessary investigation presented the challan against the accused-appellant before District Criminal Court Pallandri/Sudhnuti. During the course of trial the prosecution has produced almost all the witnesses before the trial Court except witnesses Nos.20 to 24; out of whom witness No,20 has been claimed to have been given up by the Prosecuting Officer. .
3. An application for bail was moved by the appellant before the trial Court on 7-12-1996 for his release on bail on the statutory ground for having remained in custody for a period of more than 2 years and trial having not concluded as yet. In the circumstances it was prayed by the appellant that he was entitled to the concession of bail in view of the amendment in section 497, Cr.P.C. The trial Court rejected the application vide its order, dated 17-3-1997 attributing the delay to the accused-appellant. The appeal taken to the Shariat Court by the appellant was also dismissed vide the order impugned in the present appeal.
4. Sardar lqbal Hussain, the learned counsel appearing on behalf of accused-appellant, contended that even if the entire period of delay attributed to the appellant by the Trial Court is accepted the period of his detention shall exceed 3 years during which the trial has not been concluded by the Trial Court. The learned counsel contended that when the statutory delay is proved in the conclusion of the trial, the accused is entitled to be released on bail as a matter of right. The learned counsel placed reliance upon Muhammad Siddique v. Muhammad Yaqub and another PLD 1992 Sh.C. (AJ&K) 11 and Sultan Pervaiz v. The State PLD 1991 Pesh. 174, apart from numerous other authorities in support of his contention.
5. Controverting the arguments raised by the learned counsel for the appellant Mr. Shiraz Kayani, Advocate-General, submitted that the delay in the case was in the first instance caused due to abscondence of the accused and then on account of his counsel's absence and seeking adjournments for reaching a compromise. The learned counsel contended that the evidence in the case is at the verge of completion and only 4 witnesses' evidence remains to be recorded and in these circumstances the case should be decided on merit.
6. We have carefully taken into consideration the respective contentions of the learned counsel for the parties and perused the relevant record. The Shariat Court has rejected the bail plea of the appellant mainly on two-fold grounds:--
(i) That the prosecution, accused and the Court have almost equally contributed in delay. The accused-appellant had been obtaining the adjournments for entering into a compromise and also due to the absence of his counsel; and
(ii) that the prosecution evidence is almost complete. The evidence of 4 police officials yet remains to be recorded. In the circumstances of the case the trial is almost concluded.
7. In our view the ground made basis for rejecting the bail plea of the accused-appellant are neither relevant nor in consonance with the provisions of law. The only point relevant for the consideration of Shariat Court as well as the trial Court was as to whether if we exclude the period of delay occasioned by the accused or his counsel the period of detention exceeds 2 years or not.
This moot point has not been resolved by the Trial Court as well as by a learned Judge in the Shariat Court. The learned counsel for the appellant has brought to our notice that even if we exclude the period of delay allegedly caused by the accused or his counsel the period of detention still remains to be 3 years or at least more than two years.
8. The first proviso of section 2 of the Amending Ordinance, 1997 may usefully be reproduced:-- "2. Amendment of section 497, Act V of 1898:-- ................................
' Provided further that notwithstanding 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)
(b) who, being accused of any 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."
9. The phraseology of the above -referred amended Ordinance clearly postulates that if the delay is not caused by the accused or any person acting on his behalf and his detention remains continuous exceeding period of two years for such offence then he may be released on bail provided whose trial has not been concluded within a stipulated period of two years. In the instant case conceding for the sake of arguments that the accused had been obtaining adjournments for entering into a compromise and similarly his counsel has been seeking adjournments for one reason or the other but the fact of the matter is that the detention of the accused exceeds by all means the period of two years and his trial has not yet been concluded.
10. We are also not impressed by the finding recorded by the Trial Court as well as the Shariat Court that since the evidence of four prosecution witnesses remains yet to be recorded therefore, the trial is at the verge of conclusion. No such provision is available in the amending Ordinance nor such interpretation could have been made keeping in view the provisions of relevant law. We need not discuss the authorities referred by the learned counsel for the appellant as the relevant law ex- facie is clear and unambiguous.
11. For the aforestated reasons, by setting aside the impugned order of Shariat Court as well as that of the trial Court, we order the release of accused-appellant on bail, provided he furnishes a bail bond in the sum of Rs,4,00,000 (rupees four lacs) with two sureties binding themselves jointly and severely alongwith his personal bond of same amount to the satisfaction of any Magistrate 1st Class, Pallandri. If the accused-appellant does the needful, he shall be released forthwith provided he is not wanted in any other offence or any case. The appeal is accepted in the manner indicated above.