' The petitioner is charged under sections 148, 324 and 302/149, P.P.C., vide F.I.R. No,112, dated 23-5- 1997 at Police Station, Wahndo, District, Gujranwala.
2. Allegation against the petitioner who was allegedly armed with a rifle is that he alongwith his co- accused formed an unlawful assembly within the area of village Kulu Khurd, Police Station Wahndo, District, Gujranwala and in prosecution of the common object of the said assembly made a murderous assault on Mst. Ghafooran Bibi, the mother of Shabbir and caused fire-arm injuries which resulted in her death.
3. Specific part is attributed to the petitioner; his previous bail application was dismissed by learned Sessions Judge, Gujranwala on 2-1-1999. Thereafter, the petitioner approached this Court for bail. His bail petition was dismissed as withdrawn. He again moved second bail petition. That too was dismissed by the learned Sessions Judge, Gujranwala vide order, dated 15-7-1999.
4. Feeling aggrieved the petitioner has moved the instant petition for grant of bail on two-fold grounds:
(i) That the petitioner is behind the bar since 26-6-1997 i,e,, more than two years, hence his case falls within proviso 3rd to section 497, Cr.P.C., and is, therefore, entitled to bail on statutory grounds and,
(ii) that the co-accused of the petitioner against whom there are identical allegations have already been released on bail and the rule of consistency demands that concession of bail should also be extended to the petitioner.
5. Having given our careful consideration to the aforesaid arguments, we do not see any force in them. It is now well-settled that an accused who is involved in a case like the instant one punishable with death, is entitled to bail as of right if he is detained in jail for more than two years and his trial has not yet concluded. However, this concession is subject to the condition provided in third proviso namely, that the delay in the trial of the case should not have occasioned by any act or omission of the accused or any other person acting on his behalf.
6. In the instant case it is borne out from the record that the petitioner is chiefly responsible for causing delay in the disposal of the case and conclusion of the trial. The challan was submitted in Court in November, 1997 and the petitioner had been requesting on each and every date of hearing for adjournment on the pretext that he had to engage his counsel. Mr. Liaqat Ali Sindhu, Advocate appeared on his behalf on 16-6-1999 and filed his "Wakalatnama". It was perhaps a deliberate and conscious attempt on the part of the petitioner to get it adjourned with a view to gain time and 17 long months were consumed to engage a counsel. During the said period the Prosecution did not obtain even a single adjournment hence the fault lies with the petitioner who is chiefly responsible for this inordinate delay in the disposal of the case. He cannot, therefore, be allowed to take benefit under proviso third whereby an accused is entitled to bail as a matter of right if the statutory period mentioned either in clause (a) or clause (b) has expired and the trial has not been concluded. This right can be defeated only if the State or the complainant shows that the delay in trial is attributable to the accused person concerned. Once it is shown the above right is forfeited.
Reference may be made to the case of Akhtar Abbas v. The State (PLD 1982 SC 424) in which the Hon'ble Supreme Court while refusing a petition for leave against the refusal of bail observed as under as to the effect of delay caused by an accused in the conclusion of the trial: "We regret we are not impressed by these submissions as we find that the requirements of the law are not fulfilled in this case, as at least on eight occasions adjournments were sought by the defence for one reason or the other. In such a case it does not appear to be the intention of the law to calculate the amount of delay caused by the defence. All that is necessary is to see whether the finalisation of the trial has, in any manner, been delayed by an act or omission on the part of the accused. In the present case, the delay is partly attributable to the accused. The submission that the date in question was fixed for the hearing of the case is not correct. On the contrary, it is clear from the order sheet of the trial Court on these dates most of the witnesses were summoned and were present, but their examination had to be postponed owing to the request made by the defence counsel."
7. We are fully alive that the detention of an under-trial accused for a pretty long time is not warranted by law. The despair of such a prisoner is best expressed in the bitter lines of Oscar Wilde.
The Ballad of Reading Gaol: ' I know not whether Laws be right, Or whether Laws be wrong, All that we know who lie in gaol, Is that the wall is strong; ' And that each day is like a year.
' A year whose days are long.
' But we (Judges) are prisoners of the law and are not free to free a prisoner save through the open sesame of Justice according to law. That is why if a prisoner has been seeking adjournments from time to time on one pretext or the other and, thus, contributes to cause delay in the conclusion of the trial, he is acting at his own Deril and does not deserve the concession afforded to him under proviso three to section 497, Cr.P.C., (ibid.).
8. It is significant to note that his earlier bail petition was dismissed by the learned Sessions Judge, Gujranwala on merits vide his order, dated 2-1-1999, but we are at pains to note that no reference of the dismissal of the earlier bail petition on merits by the trial Court finds mention in the instant petition. This fact was intentionally suppressed--what a pity.
9. A perusal of the record shows that the case of the petitioner is not at par with that of his co- accused. We, therefore, see no good ground to admit the petitioner to bail at this stage when the trial has already commenced.
10. The bail petition is devoid of force which stands consequently dismissed.