1. ' MUHAMMAD ROSHAN ESSANI, J.--- The facts leading to present application for cancellation of bail under section 497(5), Cr.P.C. Are, that respondents/accused Ayaz Ahmed alias Jajee and Murtaza alias Papoo are facing trial in Sessions Case No,123 of 1998 before learned IV Additional Sessions Judge, Mirpur Mathelo under sections 364, 365-A and 34, P.P.C. The case arose out of F.I.R. No,37 of 1998 Police Station Yaro Lund.
2. ' The brief facts of the case as disclosed in the impugned order are that on 17-9-1998, the applicant/complainant Abdul Wahid lodged his report at Police Station Yaro Lund. During the course of investigation, the respondents/accused were arrested by the police on 23-9-1998 and were sent up to stand trial on 7-10-1998. The trial Court framed the charge against the respondents/accused 1 and 2 under sections 364, 365-A read with section 34, P.P.0 .
3. ' The respondents/accused 1 and 2 applied for bail before the trial Court on merits but their bail plea was dismissed. They applied for bail before this Court but they were also declined bail by order dated 17-9-1999.
4. ' The respondents/accused 1 and 2 after dismissal of bail applications on merits by the trial Court as well as by this Court again moved the trial Court for the grant of bail on statutory ground of delay. The trial Court granted bail to the respondents/accused by impugned order, dated 6-1- 2000.
5. ' We have heard Mr. Ghulam Sarwar Korai, learned counsel appearing on behalf of the applicant/complainant, Mr. Shamsuddin Kobhar, learned counsel appearing on behalf of the respondents/accused 1 and 2 as well as Mr. Sher Muhammad Shar, learned Assistant Advocate- General, Sindh on behalf of the State. The latter concedes to the prayer of the applicant/complainant.
6. ' The perusal of material placed on record shows that the respondents/accused were charged for an offence punishable with death or imprisonment for life. It will be pertinent to reproduce hereinbelow the charge framed by the trial Court:- Charge ' I, Nisar Muhammad Shaikh, IV Additional Sessions Judge, Mirpur Mathelo, do hereby charge you:--
(1) Munir Ahmed son of Bashir Ahmed.
(2) Ghulam Murtaza alias Papoo son of Ghulam Mustafa.
(3) Ayaz alias Aijaz son of Irshad Ahmed.
(4) Ghulam Mustafa son of Manzoor Ahmed all by caste Korai, as follows: ' That you on 3-5-1998 at about unknown time, from the house of complainant Abdul Wahid Koari situated in Deh Yaro Lund, alongwith absconding accused namely Irshad, Bashir, Ahmed, Sudhir and Mst. Shazia, in furtherance of your common intention, took the brothers of complainant namely Sabzal, Abdul Ghafoor and Mehmood by deceitful means inducing them for the purchase of land, and thereby abducted them alongwith their cash amount of Rs,15,30,000, wrist-watches and a motorcycle, in order to extort such property from them and to commit their murder, and thereby committed the offence punishable under sections 364, 365-A read with section 34, P.P.C. And within the cognizance of this Court.
7. ' And I hereby direct that you be tried by this Court on the abovesaid charge.
8. ' This the 14th day of May, 1999.
9. (Sd.) 14-5-1999 ' IV Additional Sessions Judge, Mirpur Mathelo."
10. ' The section 364, P.P.C. Is punishable with imprisonment for life or 10 years and fine whereas section 365-A, P.P.C. Is punishable with death.
11. ' It will be also pertinent to reproduce hereinbelow the provisos (3) and (4) to section 497, Cr.P.C. For the convenience sake:-- ' "Proviso (1) .............................................................................................................
12. ' Proviso (2) .............................................................................................................
13. ' Proviso (3) Provided further that the Court shall except where it is of 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 shall 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 two years and whose trial for such offence has not concluded: ' Proviso (4) Provided further that the provisions of the third proviso to this subsection shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal or involved in terrorism."
14. ' The plain reading of the above provisions of law shows that under proviso (3)(b) if an accused of an 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 been concluded, he could be granted bail.
15. ' The proviso (3) to section 497, Cr.P.C. Is not an independent iso but is controlled by proviso (4) to section 497, Cr.P.C.
16. ' For the grant or refusal of bail on the ground of statutory delay, it is essential to see that delay was not occasioned due to an act or omission of the accused or any other person acting on his behalf.
17. ' The further perusal of record shows that on 24-6-1999, 3-7-1999, 16-9-1999 and 7-10-1999 the trial of the case was adjourned due to the act or omission of the accused or any other person acting on his behalf.
18. It is well-settled that Court for the purpose of grant of bail on the ground of statutory delay cannot add or subtract the period. In the present case inasmuch as on 4 dates of hearing, the case could not proceed due to the act or omission of the accused or the person acting on their behalf.
19. ' Merely because the State Counsel raised no objection for the grant of bail, is no ground for the grant of bail. The opinion of any person to the proceedings is not binding upon the Courts. The Court shall have to apply its judicial mind looking towards the peculiar facts and circumstances of each case being uninfluenced by the opinion of the State Counsel or any other person.
20. ' The comments of (Mr. Ghulam Shabir Dayo) learned IV Additional Sessions Judge, Mirpur Mathelo reveal that the Court of IV Additional Sessions Judge was lying vacant since December, 1999 to 8- 12-2000. The bail application was filed before (Mr. Amir Faisal) the learned III Additional Sessions Judge, Mirpur Mathelo on 18-12-1999 and he being incharge Judge granted bail to accused by impugned order, dated 6-1-2000. The paragraph 4 at page 3 of the impugned order is reproduced hereinbelow:-- "It is admitted' fact that accused are in custody since 23-9-1998 and the prosecution ha only examined complainant on 25-11-1999. The jail report is satisfactory according to police report, dated 4-1.2000 the accused are required in present Crime No,37 of 1998. Another report of police, dated 5-1.2000 reveals that the accused are required in investigation by ,S.H.Os. Police Station Mirpur Mathelo and Khanpur Mahar,"
21. The accused remained in custody for the total period of 21 months and 4 days. Incharge Judge not only granted bail before the expiry of statutory period of two years but for the grant of bail he made mathematical calculation which is not warranted by law. Thus, the trial Court has erred in law by granting the bail to the accused.
22. Consequently, the ing bail to the accused by the learned IV Additional Sessions Judge is hereby recalled and application of cancellation of bail stands allowed.
23. ' A copy of this order may be sent to the learned Registration keeping the same on the personal file of Mr. Amir Faisal learned Additional Sessions Judge as well as the same may be placed before Honourable Chief Justice for appropriate action.
24. Bail cancelled.