' Respondents Nos.1 and 2 namely Mukhtar Ahmad and Mehboob Elahi are facing trial for the charge of murder before the learned Special Court No,III, Lahore constituted under Suppression of Terrorist Activities Act, 1975. The respondents being under custody for a continuous period of about two years and ten months without conclusion of the trial were allowed bail by the learned Judge, Special Court vide order, dated 15-8-1996. The petitioner being aggrieved of the order of release of the respondents on bail has moved this petition under section 497(5), Cr.P.C. For cancellation of their bail.
2. Briefly, the facts in the background are that a case for the allegation of committing murder of Bashir Ahmad and Khalid was registered against respondents Nos.1 and 2 and others named in the F.I.R. Under sections 302/34 and 148/149, P.P.C. Through F.I.R. No,112 of 1993, dated 10-10-1993 with Police Station Qadirabad, at the instance of the petitioner. Mukhtar Ahmad was arrested on 24-10- 1993 whereas Mehboob Elahi was taken into custody on 2-11-1993.
3. During investigation 12 other persons named as accused in the F.I.R. Were discharged. The respondents having found involved in the case were challaned to face the trial before the Special Court. The charge having framed on 22-10-1994, evidence of three prosecution witnesses was recorded on 5-6-1995.
4. The abovesaid discharged order of 12 accused was challenged by the petitioner through filing a petition under section 561-A, Cr.P.C. Before this Court, which was disposed of with the observation that the petitioner could file a private complaint. Consequently, a private complaint was filed by the petitioner on 16-10-1995 against the said 12 persons but only four were summoned as accused.
This order in the private complaint was challenged by the accused summoned therein before this Court and proceedings in the case before the trial Court were stayed vide order, dated 5-8-1995.
5. The case was pending for argument on the question whether trial against the respondents Nos.1 and 2 could proceed independently to the private complaint and in the meanwhile the Special Court No,IV having ceased functioning, the respondents Nos.1 and 2 moved an application for grant of bail before the Special Court No,III at Lahore when the case was at the evidence stage. The learned trial Judge allowed them bail on statutory ground on 15-8-1996. The present application for cancellation of bail of respondents Nos.1 and 2 was moved before this Court on 8-9-1996.
6. Learned counsel for the petitioner contends that respondents Nos.1 and 2 having obtained successive adjournments during the period from 2-8-1994 to 13-3-1995 caused delay of about 8- 1/2 months in the trial and further 16 adjournments were obtained by the defence during the period from 20-12-1995 to 15-8-1996. He contended that after dismissal of first bail application on the statutory ground on 20-12-1995 with the observation that respondents were responsible for the delay in conclusion of the trial, the said ground was not available to them. He placing reliance on Akhtar Abbas v. The State PLD 1982 SC 424, Ashiq Hussain and others v. The State 1989 SCM R 392, Shouki alias Shoukat and another v. The State and another 1984 SCM R 613, Syed Waqar-ulHassan v.
The State 1988 PCr.LJ 2010 submitted that the delay in conclusion of trial being attributable to the respondents Nos.1 and 2, they were.Not entitled to the grant of bail.
7. Learned counsel appearing on behalf of respondents Nos.1 and 2 contended that the delay was occasioned due to the filing of a petition under section 561-A, Cr.P.C. Before this Court by the petitioner against the discharge of the remaining accused named in the F.I.R. And the stay of the proceedings in the connected complaint pertaining to the same occurrence. He argued that delay in the trial was not exclusively caused by an act or commission of the respondents and that the same was either on the part of the complainant himself or the accused in the private complaint.
He with reference to Panjal v. The State 1990 PCr.LJ 2051 (Karachi) and Rashid Ahmad and 2 others v. The State 1994 PCr.LJ 801 argued that the learned Special Court has committed no error while granting bail to respondents Nos.1 and 2 on statutory ground.
8. We have heard the learned counsel for the parties at length and also perused the order-sheet of the trial Court placed on record. After receipt of challan by the Special Court at Gujranwala, the case was adjourned for 28-11-1993 for appearance of the accused but in the meanwhile, the case was transferred to the Special Court No,IV, Lahore and the accused were summoned by the said Court for 14-12-1993. The copies of the documents were supplied to the accused on 10-1-1994 and the case was adjourned to 25-1-1994 for framing charge but it could not be framed till 27-11-1994 due to various reasons and mainly on the request of the respondents and their counsel. During this period about 12 adjournment were exclusively obtained by the defence. The case having fixed for the prosecution evidence the witnesses did not appear on two consecutive dates. The formal witnesses were present on 13-2-1995 but their statements could not be recorded for non- availability of the defence counsel. Thereafter, the case was adjourned for four times because of the non-presence of the prosecution evidence and on 5-6-1995 the statements of the three witnesses were recorded and the case was adjourned to 25-6-1995 for remaining evidence. On which date, the petitioner moved an application for staying the further proceedings in the case till his petition under section 561-A, Cr.P.C. Before this Court was not disposed of . Consequently, the trial could not proceed till 20-12-1995 and thereafter, the proceedings without any legal bar remained suspended.
' Manifestly the following three major factors were the cause of delay:--
(1) Adjournments obtained by the defence on various grounds and non-availability of the prosecution evidence on some dates.
(2) The private complaint and filing of petition by the petitioner in the High Court and
(3) Stay of proceedings by the High Court on the petition of accused in private complaint.
9. The calculation of time constituting delay caused at the instance of the defence is not the intention of law. The Courts have to ascertain whether the delay was due to the act or omission of the prosecution or whether the accused were responsible for the fatal delay.
10. The Honourable Supreme Court of Pakistan in Akhtar Abbas v. The State PLD 1982 SC 424 and Ashiq Hussain and 3 others v. The State 1989 SCM R 1580 observed that without calculating the amount of delay caused by the defence it was to be seen that in what manner the finalization of the trial was delayed by an act or omission of the accused to disentitled him for grant of bail. In present case most of the time consumed in the disposal of the petition under section 561-A, Cr.P.C.
For quashment of the discharge order before this Court and in the petition by virtue of which the order, dated 16-10-1995 of summoning the co-accused of the respondents in the private complaint was challenged. Undoubtedly, respondents contributed in the delay in conclusion of trial but they were not the only party responsible for the delay in finalization of the trial. The act of their co- accused in complaint and the complainant would not be ignorable to deprive them of benefit of bail. The adjournments due to non-availability of defence counsel cannot ipso facto be construed a justification for delaying trial. The refusal of bail on the ground that delay was caused due to the non-availability of the counsel or that accused obtained adjournments to engage counsel, unless is found an intentional act to prolong the trial deliberately, withholding concession of bail under third proviso to section 497, Cr.P.C. On such ground would be an act to deprive an accused from engaging a counsel of his choice and punish him for absence of his counsel due to other professional business.
11. The respondents were granted bail after lapse of a period of two years and 10 months from their arrest and during their detention only three witnesses could be examined on 5-6-1995 and since then the trial is at the same stage. The respondents have no contribution in the delay after said date and consequently this delay of more than two years being not attributable to them, the earlier delay on their part lost efficacy to be considered a ground for cancellation of bail.
12. The challan case against the petitioner is pending with the private complaint and admittedly after grant of bail further delay in the trial being not attributable to the respondents, they, in the circumstances, are entitled to remain on bail.
13. The Courts do not enjoy discretionary power to refuse bail on statutory ground under third proviso to section 497(1), Cr.P.C. If the other conditions are fulfilled as the bail on statutory ground is a right of an accused subject to the. Third proviso to section 497(1), Cr.P.C. Similarly, if a person is not entitled to be granted bail on statutory ground, the Court cannot in its discretion extend such benefit to him. The bail granted on statutory ground as a result of the mixed responsibility of delay caused by the parties in the conclusion of trial, in absence of any strong circumstance disentitling the respondents to remain on bail is not interferable.
14. For the foregoing reasons, we dismiss this application with the direction to the trial Court that if there is no legal bar, efforts shall be made for conclusion of the trial within three months.