SARDAR MUHAMMAD NAWAZ KHAN, J.- The petitioners are facing trial for offences under Sections 302/34/324, 147/148, 149/506 before District Court of Criminal Jurisdiction Bagh. They were arrested on 5-4-1996 and a challan for the afore-mentioned offences was submitted before the said Court on 8-5-1996. The case is at the stage of prosecution evidence and the same is almost complete except PWs. Nos. 21, 22, 25 and 26. The accused-petitioners, during trial, moved a bail application on 19-5-1996 and requested the trial Court to enlarge them on bail keeping in view the matters of the case. The trial Court vide its order dated 6-8- 1996 refused to grant their wish. The petitioners feeling aggrieved by the aforesaid order of the trial Court moved this Court through a second bail application but their application was dis-allowed by the order of this Court dated 12-04-1997. As no appeal was filed against the aforesaid order of this Court, therefore, the order dated 12-04-1997 attained finality.
2. The accused-petitioner again moved an application under the amended law in shape of third proviso to sub-section (1) of Section 497, Cr.P.C. The trial Court declined to grant their request vide its order dated 31-07-1998. Hence this appeal to assail the validity of the aforesaid order.
3. The learned counsel for the accused-petitioners while challenging the impugned order, submitted that the Court below acted contrary to law while disallowing the bail application of the accused-petitioners. According to the learned counsel, the accused-petitioners were entitled to concession of bail as they were under continuous detention since 05-04-1996 and, at the time of the submission of the bail application, the period for detention was more than to years and the trial of the case was ^et to be concluded. The learned counsel further argued that the trial Court fell in error while counting the period consumed during a bail application by the accused-petitioners against his clients. It was a statutory right given to the accused-persons to move for their bail under law and the period consumed during the bail application could not be counted against the accused- petitioners. The learned counsel during his arguments cited 1984, P.Cr.L.J, pages 626 and 2456 and P.Cr.L.J. 1986 page 1246 to support his contention.
4. As against this, the learned counsel for the complainant and the learned Assistant Advocate General controverted the argument on the opposite side and argued that the trial Court while recording the impugned order acted in the right direction and no illegality was committed by the said Court. According to the learned counsel, the trial in the case was delayed on account of act and omission of the accused-petitioners and the prosecution could not be penalised for the fault of the defence. The learned counsel further submitted that the accused-petitioners were desperate and hardened criminals as such they were not entitled to any concession in shape of bail. During arguments, to different cases title Muhammad Siddique v. Muhammad Baharam decided by the Honourable Supreme Court of Azad Jammu and Kashmir on 12-11-1997 and Sardar Muhammad Ashraf and others v. The State, decided by the Hon'ble Chief Justice of this Court on 28-02-1997 were referred which were relevant to some extent. The other case-law referred by the learned counsel for the parties had no bearing on the facts of the instant case, therefore, it is not felt expedient to mention the same.
5. The impugned order was examined in the light of record of the case. It is admitted that the accused-petitioners were arrested on 05-04-1996 and a bail application under the aforesaid amended law was submitted before the trial Court on 04-07-1998. Therefore, the period consumed during trial from the date of the detention of the accused-petitioners till filing of the bail application is to years and three months. The trial Court counted the period of 9 months and 9 days against the accused-petitioners and rejected the bail application as pre-mature. According to the trial Court the period of 9-months and 9-days was consumed by the act of omission of the accused- petitioners. The accused-petitioners, according to the trial Court, moved a bail application on merits and they went up to Shariat Court and as such a period of 04 months and 13 days was consumed during this exercise. Moreover the counsel for the accused-petitioners remained absent fr6m 09-07-1997 to 26-07-1997 and delay of 17 days was also occasioned by the act of the defence, the learned Court opined. The trial Court further observed that an adjournment was sought by the defence counsel during trial from 24-11-1997 to 04-12-1997 and in this way a delay of 10 days was also caused by the defence. The further observation made by the trial Court was that a delay of 03 months and 19 days was occasioned by the act of the defence as the accused- petitioners moved bail application before Shariat Court of Azad Jammu and Kashmir and the learned Court summoned the trial Court file which remained with Shariat Court from 02-09-1996 to 17-12-1996. The trial Court also opined with the case was further delayed by the act of defence counsel from 27-09-1997 to 23-10-1997 as the learned counsel could not complete his cross- examination on a prosecution witness namely Gul Rahim. The period of 15 days, per estimation of the trial Court, was to be counted against the prosecution as the same was consumed by the act of the prosecution.
5. The main controversy that remained between the parties before this Court as well as before the trial Court was whether or not the period consumed during bail application could be counted against the accused-petitioners. To arrive at some conclusion, it is felt expedient to re-produce the relevant law for the convenience and the same is as follows:- "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 any 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 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 to years and whose trial for such offence has not concluded; Provided further that the provision of the third proviso' to this section shall not apply to a person who,
(a) in the opinion of the 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) an accused residing in Pakistan."
The above referred provision of law shows that if a person being accused of an offence punishable with death is detained for a continuous period exceeding to years and whose trial for such offence has not been concluded may be released on bail provided he does not fall under the exceptions given in the aforesaid provision of law. This provision of law further shows that if the Court 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 he shall not be entitled to concession of bail it is correct to say that to move for bail is the statutory right of accused-person but at the same time it cannot be allowed to penalise the prosecution or any other aggrieved party. The act of the accused-person while exercising his statutory right cannot be said to be the act or omission of the prosecution in delay of the trial of case. The background which prompted the Legislature to enact the aforesaid provision of law appears to be the un-necessary and protracted delay in conclusion of the trial of the criminal cases pending before different Courts in Pakistan and Azad Kashmir. The intention of the aforesaid legislation is to expedite the trial of the cases and law-makers have acted wisely while bringing the said legislation on the statute book. Any party to a criminal case whether defence or prosecution is not allowed to take the benefit of the aforesaid piece of law if the delay in the trial is found to have been occasioned by them. The plain reading of the amended law shows that an accused may be released on bail provided the delay in the trial has not been caused by or on his behalf meaning thereby that if in the opinion of Court the delay in the trial is due to the fault of defence the aforesaid law does not allow to redress its grievance. I have also considered the law cited by learned defence counsel. It has been held in 1984 P.Cr.L.J. 2456 that it is the statutory right of the accused-person to move for his bail and if the period consumed during the bail application is allowed to be counted against the accused- person, it shall amount to dis- allow the person from exercising his statutory right. The learned Judge in the Bench at the relevant time opined that the period consumed during the proceedings in a bail application could not be counted against the accused-person.
6. With all respect to the learned Judge, I cannot subscribe to the view expressed by the learned Judge. The reason being that we should read the law as it is on the statute book. The law says that the accused-person can be benefited under the amended law when it is found that the delay in the trial has not been occasioned by any act or omission of the defence. The words "act or "omission" have been used in the aforesaid provision of law. It means that any act or omission by or on behalf of the accused whether done in pursuance of a statutory right or otherwise if causes delay in the trial debars him from concession of bail. If an accused-person while exercising his statutory right causes delay in trial, how it can be said that it was a delay caused by the prosecution. The intention behind third proviso to subsection (1) of Section 497, Cr.P.C, appears to be that the act or omission on behalf of the defence in a criminal case cannot be allowed to add to sorrows and griefs of the complainant party. It is not in the interest of Justice to put the prosecution or complainant party into penalty for simple reason that the delay was caused on account act of the accused committed in pursuance of his statutory right. It is definitely not the intention of the legislation. The Court has to fix the responsibility of delay first and then decide the bail matter. The perusal of the relevant law shows that the Court when finds the accused responsible for the delay in the trial then the answer to bail application would definitely be in negative, but where it is found that the delay in the trial is not occasioned by the accused or any person acting on his behalf, he may be released on bail.
7. The argument, that the period consumed during the pendency of the bail application cannot be counted against the accused as it is a statutory right, is devoid of force. The law does not stipulate that only the malafide, deliberate, or illegal act or omission by or on behalf of the accused debars him from taking the benefit out of it, but it speaks of simply an "act" or "omission" meaning thereby that any act whether in pursuance of statutory right or otherwise if causes the delay, the accused cannot be released on bail by invoking this piece of legislation. We should not stretch the law in favour of any party and the fair game is to follow the law as it is on the statute book. If the delay is caused by the accused then why to punish the other party for no fault of their on. Those who were responsible for delay must suffer and not the others.
8. The fair play in the instant case is, to count the time taken during the pendency of bail application, transmission of trial's Court file from one place to another, the adjournment of the case due to non-completion of cross-examination and adjournment sought by the defence counsel against the accused-petitioners and the prosecution or any other person cannot be deemed to be responsible for it.
9. In the instant case the delay in the trial for a period of 9 months and 9 days at the time of submission of the bail application before trial Court was occasioned by an act of the accused- petitioners and it was rightly held by the trial Court that the bail application submitted before the said Court was pre-mature.
The result is that no case has been made out to recall the impugned order and the appeal being devoid of force is hereby dismissed.