1. ' SARDAR MUHAMMAD NAWAZ KHAN, J.--- A Crime No,30 of 1998 for offences under sections 302/34 and 341/109, A.P.C. Was registered at Police Station Punjgran, Muzaffarabad on 9-7-1998 on a report of the complainant Muhammad Siddique son of Umer Din. It was alleged in the report that on 9-7- 1998 at about 8 a.m. His father Umer Din left his house for recovery of debt from Faqir Muhammad son of Habib Ullah resident of Chamita Dana. The complainant was at his home whereupon at 2-30 p.m. Muhammad Din son of Jumma resident of Chamita Dana informed him that his father while going to the house of Faqir Muhammad at about 10 a.m. Was attacked by the accused Abdullah son of Islam Din, Imam Din alias Gumani son of Salam Din, Muhammad Din son of Nizam Din and Abdul Hamid son of Jalal Din. The assailants were equipped with sticks and they, with intention to murder the father of the complainant, attacked him. Mr. Abdullah accused gave a hard blow with stick on the forehead of the father of the complainant (deceased). Consequently, the complainant's father fell down on ground and Abdullah again hit him on right leg with a heavy stone, resultantly the leg of the deceased was fractured. The co-accused, according to the report, also inflicted injuries on the person of the deceased through sticks and stones. All the accused, after killing the deceased, dragged his dead body to a hill and from there he was thrown down. It was also alleged in the report that the aforesaid persons murdered the father of the complainant with the connivance of Muhammad Yaqoob son of Abdul Hamid, Muhammad Nazir son of Salam Din, Salam Din son of Jalal Din, Kalou son of Nizam Din, Umer Din son of Abdullah and Najam Din son of Faqir Muhammad. The occurrence, according to the, report, was witnessed by Muhammad Din son of Jumma, Abdul Karim son of Allah Din and Muhammad Yousaf son of Alif Din resident of Batangi. The motive disclosed in the F.I.R. Was some dispute over a piece of land between Abdullah accused and Muhammad Din son of Jumma. The deceased, according to the report, was assisting Muhammad Din in his litigation with the accused Abdullah and as such Abdullah accused was having a grudge against the deceased and was inimical to the deceased.
2. ' The police concerned, after registration of the case conducted the investigation and found the accused-respondents as guilty of the offence. The other accused, mentioned in the F.I.R. Were released by the police by giving them the benefit under section 169, Cr.P.C. The accused- respondents are facing trial before District Court of Criminal Jurisdiction, Muzaffarabad.
3. ' Initially the accused-respondents moved for concession of bail on merits of the case failing which they approached the trial Court to enlarge them on bail under the amended law pertaining to delay in the trial. The Court, by accepting their application, released them on bail through the impugned order.
4. ' The learned counsel for the complainant/petitioner argued that the statutory period required to release the accused-respondents on bail was yet to be completed as such the trial Court acted in the wrong direction while allowing their bail application. According to the learned counsel, the total period of detention right from their arrest comes to two years, two months and 26 days at the time of recorded by the trial Court. However, the trial of the case stood delayed on account of different acts and commissions by the accused-respondents or their counsel. The total period according to the learned counsel, which could be counted against the accused-respondents is six months and 11 days, therefore, by deducting this period from the total period of detention, the actual period of detention comes to one year nine months and 13 days and, this being the position, the bail application by the accused-respondents was premature as such liable to be rejected. To elaborate his view-point, it was contended by him that leaving aside the period consumed during different adjournments of the case on account of act or omission by the accused-respondents or on their behalf, the trial Court's file remained pending before this Court on account of .a bail application submitted by the accused-respondents for a period spreading over six months and 11 days. According to him, the period consumed during pendency of their bail application before this Court was to be counted against them as their act caused the delay in the trial for no fault on the part of prosecution, therefore, it was not just to count this period in favour of accused-respondents.
5. The act or omission on the part of accused-respondents at different stages during the trial delayed the case for 73 days and this period, when calculated alongwith the period consumed during bail application, suggested to reject their bail application being premature. The learned counsel during his arguments, cited a reported case of this Court titled Sarfraz Khan v. The State 1999 YLR 2115 and contended that the period consumed during bail application by accused-respondents was to be counted against them as the purpose and intent of the legislation appears to be the same as observed in the aforesaid judgment. The learned counsel also argued that the accused- respondents could not be released on bail even the period of their detention was complete under the amended law for the reasons that they are hardened, desperate and dangerous criminals as such their case was covered by 4th proviso to section 497, Cr.P.C. The accused-respondents, after killing the deceased, dragged the dead body to a hill from where it was thrown down by them and this act of the accused-respondents showed their callousness and insensibility, therefore, their bail application was to be rejected on this ground too, the learned counsel maintained.
6. ' The controversy which remained under debate at bar was whether the period consumed during pendency of bail application before Shariat Court could be counted against the respondents. The learned defence counsel laid much emphasis on the point that to pursue for bail was a statutory right of the accused, therefore, the same being not vexatious could not debar them from taking benefit under the amended law. The learned counsel, during his arguments placed reliance on two reported cases titled Gala Jan v. The State 1984 PCr.LJ 2456 and Rehmat Khan v. The State PLD 1991 Pesh.
7. 47.
8. ' In case titled Rehmat Khan v, The State it was held that the reasonable period spent in pursuing bail application which is not vexatious does not come within the mischief "of an act or omission of the accused or any other person acting on his behalf". The other case titled Gala Jan v. The State was also examined. In that case too, it was held that to pursue for bail was a statutory right of an accused and, if the period consumed during a bail application is allowed to be counted against the accused, it would amount to discourage him from pursuing his statutory right.
9. ' We have given our earnest thought to the point canvassed at Bar. Before arriving at some conclusion, it would be proper to reproduce the relevant piece of law dealing with the subject. The relevant piece of legislation reads as under:-- "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 two years and whose trial for such offence has not concluded; ' Provided further that the provision of the third proviso of 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."
10. After careful examination of the above-referred provisions of law, we are of the opinion that the period consumed during pendency of a bail application by an accused before any Court having Appellate or Revisional jurisdiction cannot be allowed to be counted in his favour. The reason being that the intention of the legislation does not appear so. The law is that any act or omission by or on behalf of an accused if caused delay in the trial, he/she cannot be released on bail. The word "any" used before the words act or omission in the said provision of law is of vital significance. The intention of legislation by using the word "any" appears to be that the act by or on behalf of an accused whether in pursuance of a statutory right or otherwise may be bona fide or mala fide both. Had it been the intention of legislation that only vexatious or mala fide act or omission by or on behalf of an accused can be made basis to refuse his bail plea then, instead of using word "any" the word vexatious or mala fide act or omission might have been used in the provision of law. The plain reading of the relevant provision of law shows that if the trial is not concluded within the statutory period and the delay has not been caused by the defence, then of course, an accused can be benefited under this piece of law provided he does not fall under the exception given in the aforesaid piece of law. The special piece of law has got a reason or justification behind it. The criminal cases were being delayed unnecessarily and it took years together to conclude the trial whereas on the other hand the accused persons remained under detention for a long time for no fault of their own. Therefore, while keeping this state of affairs, in view, the legislation, in order to address this problem, felt it proper to bring this piece of law on the statute book. The criminal cases, as a matter of fact, were being delayed especially when the accused were under custody.
11. Therefore, it was felt expedient to legislate such piece of law which can expedite the trial of the cases. With this background, when the relevant law is seen, it clearly suggests to allow bail only in those cases where the statutory period is complete but the trial is yet to be completed. However, where the trial has been delayed due to any act or omission by or on behalf of an accused, the bail plea can be turned down. This Court has already held the same view in a case titled Sarfraz Khan v.
12. The State 1999 YLR 2115, which is reproduced as under:-- "With all respect to the learned Judge, I cannot subscribe to the view expressed by him. The reason being that we should read the law as it is on the statute book. The law says that the accused persons 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 word 'ace 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 grief's of the complainant party. It is not in the interest of justice to put the prosecution or account act of the accused committed in pursuance of complainant party into penalty for simple reason that the delay was caused on his statutory right. It is definitely not the intention of the legislation.
13. 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.
14. ' The arguments, 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 mala fide, 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 'ace or 'omission' meaning thereby that any act whether in persuance 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 own. Those who were responsible for delay must suffer and not the others."
15. Therefore, we are of the considered view that the period consumed during bail application by the accused-respondents is to be counted against them. We, with the help of learned counsel for the parties, calculated the period for and against the respondents consumed during the trial. The total period of detention till their release on bail comes to 2 yeas, 2 months and 26 days out of which only 40 days were counted against the respondents and they were released. However, per our calculation, apart from the period exhausted during bail application, a delay of 33 days more is to be added in the total period counted against B the respondents as evident from the orders of the trial Court, dated 28-11-1998, 27-12-1999 and 9-2-2000. However, if this period of 33 days is computed in their favour even then, the bail application was premature.
16. ' The learned counsel for the prosecution also stressed to reject the bail application on the ground that the accused-respondents were hardened, desperate and dangerous criminals. We, after examining the facts of the case, are of the opinion that their case cannot be shifted to the proviso dealing with hardened, desperate and dangerous criminals. Therefore, the argument being devoid of force is hereby brushed aside.
17. The result is that the bail application by the accused-respondents under the amended law pertaining to delay in the trial was premature as such it was liable to be rejected. The trial Court was wrong to release them on bail. The revision petition is accepted and bail application by the accused-respondents is rejected.