' TARIQ PARVEZ, J.--- Petitioner Mushtaq is an accused in case F.I.R. No,458, dated 15-12-1994 of Police Station Lakki Marwat about a crime reported by Noushad Khan complainant for the murder of Aslam Khan, his brother. For the offence besides the petitioner, Irshad and Sad-ur-Rehman were charged in the F.I.R. Irshad and Saif-ur-Rehman are still at large.
2. The petitioner was arrested on 7-11-1997 and the challan has been put against him before the trial Court in July, 1999. The trial Court has so far recorded the statements of three witnesses but no further proceedings could be held because an application filed by Noushad Khan complainant under section 439-A, Cr.P.C. Read with section 435 thereof for direction to the local police to file supplementary challan against co-accused (Saleem Khan, later charged) was filed which was contested and hence number of adjournments.
3. The petitioner has come to this Court seeking his release on bail on ground that though he has spent more than two years in detention but the trial could not be concluded, therefore, by virtue of proviso three to section 497, Cr.P.C. He is entitled to bail as of right.
4. It is argued on his behalf that the delay occasioned in the conclusion of the trial is not due to fault of the accused and that there are no prospects of the case being concluded in the near future. Learned counsel for the petitioner has cited number of judgments including 1999 PCr.LJ 1704, 1996 PCr.LJ pages 1309 and 1305 and 1993 PCr.LJ page 733 on the proposition that where period as stipulated in proviso third to the section expires and the delay has not been caused by the accused or any person acting on his behalf and where there is no evidence that the accused is a previous convict or a hardened dangerous criminal, he is entitled to the grant of bail.
5. Learned counsel for the complainant and the learned counsel -appearing for the State, however, opposed the grant of bail to the accused/petitioner and submitted that accused remained a fugitive from law for over a period of three years, that the filing of application by the complainant in pursuit of his legal right would not extend any advantage to the accused, that the trial has commenced and would have concluded by now if the petitioner has not come to this Court where now the record is lying for more than eight months.
6. The occurrence in this case took place on 15-12-1994 and although some of the co-accused who were subsequently charged have applied for bail/bail before arrest and such matters went up to the august Supreme Court of Pakistan, but the fact remains that the petitioner did not surrender until he was arrested on 7-11-1997. No doubt that on simple calculation by now the accused has spent more than two years as undertrial prisoner and trial has not been concluded but that is to be seen if the provisions of section 497, proviso third, Cr.P.C. Are imperative in all cases.
7. Before the amendment of section 497, Cr.P.C. And before proviso third was added thereto, delay in the conclusion of the trial was taken into consideration by the Courts as a ground for enlarging the accused person on bail, but later such delay was incorporated by enactment when proviso third was added thereto. It was in the year 1983 when proviso IV was also enacted in this section where power of the Court allowing bail to the accused under proviso third was made subject to condition that notwithstanding the expiry of stipulated period as undertrial prisoner, an accused shall not be entitled to hail if he was a previous convict, a desperate or dangerous criminal. To determine if an accused was desperate and dangerous criminal, detailed judgments of the superior Courts have come on the subject and it has been now finally settled that such determination is on case to case basis depending on circumstances.
8. As we have observed above that the petitioner before us has spent more than two years as undertrial prisoner but the question that arises is if in the given circumstances where he remained an absconder for three years, would he be entitled to any concession or may be as of right of bail.
' In number of judgments the august Supreme Court of Pakistan has held that an absconder, notwithstanding merits of the case, loses some of his substantive rights and would thus be disentitled to the concession of bail. On the same analogy if the case of an accused person though fit for grant- of bail on merit but because of abscondence is not allowed bail, similarly the application of proviso third of section 497, Cr.P.C. Would not be applicable to the case of an absconder with same force as it would be applicable to an accused who did not abscond.
9. An accused whether charged rightly or wrongly is supposed to surrender to the law enforcing agency and shall face the trial but where he absents he in fact flouts the law. Therefore, a person who has got no respect for law cannot turn around and seek the protection of law in the same way as any accused can seek who has rot absconded. The object of addition of proviso third to section 497, Cr.P.C. Is not to allow bail to the accused in routine and it does not confer a right on the accused to go out on bail after the completion of stipulated period, but the main object is to expedite the conclusion of the trial as the expeditious disposal of the case is the right of an accused person. Such provision if on one hand gives right to the accused but on the other it is a check on the Investigating Agency, the prosecution and Courts to decide the cases without unnecessary delay. The language of proviso third is so worded that where Court is of the opinion that the trial of the accused has been delayed but such delay has not been occasioned by an act or omission of the accused or any other person acting on his behalf or in exercise of any right or privilege under any law shall direct that such person be released on bail effect would be that first the Court is to determine the responsibility that has occasioned the causing of delay and when acts of the accused or person acting on his behalf are excluded while computing the period of detention, it is bound to infer that it is the primary duty of the Investigating Agency and the prosecution to conclude the trial before an accused may invoke and press into service the provision of third proviso.
10. We, therefore, conclude that in the instant case the challan has been filed in the trial Court on 9- 7-1999 and thereafter number of adjournments have been sought by the defence, but notwithstanding the expiry of period of two years but because long abscondence of the accused he would not he entitled to be released on bail in terms of proviso third read with proviso IV to section 497, Cr.P.C. The result is that this petition is dismissed.