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Criminal Bail Application No. 175 of 1985, decided on 10th March, 1985.

‑‑‑Ss. 497(iii), 498 s 439‑‑Penal Code (XLV of 1860), S. 302/34‑‑Trial not concluding within statutory period of two years‑‑According to record and order sheet of trial Court accused not at all responsible for delay in trial‑‑Accused, held, entitled to bail.

‑‑‑Ss. 497, 498 & 439‑‑Penal Code (XLV of 1860), S. 302/34‑‑Accused remaining in jail for a period of one year and two months and then granted bail and remaining on bail for a period of about 2 months‑‑After cancellation of bail accused again remaining in jail for a period of 11 months‑‑Though accused remained in jail for a period of more than two years, yet trial not concluding‑‑Held, period for which accused was on bail was to be excluded in computation and period of detention before grant of bail and period of detention after cancellation of bail were to be rejoined in order to determine and calculate delay as contemplated under S. 497, Cr. P. C.

Saleh Muhammad v. State and another 1983 S C M R 341ref.

Jawaid Haider Kazmi for Applicant.

A.A. Muhammadally, A. A.‑G. for the State.

Khalid Athar for the Complainant.

Applicant Javed Iqbal and co‑accused Muhammad Yaseen are being tried for offence under section 302/34, P.P.C. Incident took place on 31‑10‑1982 and the applicant and co‑accused were taken in custody on 21‑11‑1982. Bail plea is urged on the ground of delay as contemplated under section 497(111), Cr. P. C. It is urged on behalf of applicant that since his arrest on 21‑11‑1982 a period of more than of two years has expired and the trial is not concluded as yet, as such he is entitled to bail. The admitted position is that applicant was in the meantime released on bail on 14‑1‑1984 and his bail was subsequently cancelled by the High Court and he was taken in custody again on 2‑4‑1984. In this manner there is discontinuation in the period of detention for two months and fifteen days. It is submitted that this period for which A applicant was on bail is to be excluded in the computation and the period of detention before the grant of bail and period of detention after the cancellation of bail are to be rejoined in order to determine and calculate delay as contemplated under section 497(iii), Cr. P. C. Reliance is placed on the case of Saleh Muhammad v. State and another 1983 S C M R 341.

Now the total period from the date of arrest i.e. 21‑11‑1982 upto the present date comes to two years three months and about twenty days. Applicant was released on bail on 14‑1‑1984 and his bail was cancelled on 2‑4‑1984 as such he was at liberty for two months and about fifteen days. Now if this period is excluded then also there is delay of little more than one month over and above two years.

According to the learned counsel for the applicant in the trial Court during the pendency of the trial proceedings, in all 33 adjournments have taken place. Four adjournment were granted on account of non‑supply of copies under section 265(c), Cr. P. C. On nine occasions custody was not produced. On four occasions some P.Ws. were served but they did not appear in the Court. On three occasions Presiding Officer was on leave. On one occasion Court was lying vacant because the Presiding Officer was transferred. Three adjournments were granted on account of non‑production of case property. Four adjournments were sought on behalf of or by counsel for co‑accused Muhammad Yaseen, who had gone to perform Haj. One adjournment was granted as A.P.P. incharge of the case was on leave and two adjournments were granted on account of declaration of holidays.

Learned counsel for the applicant has pointed out that on 20‑2‑1984 he was absent, as it appears from the order sheet of that day but then the case was not adjourned solely on that account because there were other reasons also for which the case could not have proceeded even otherwise. Those reasons are that Mr. Shamsuddin, A.P.P. was on leave and P.Ws. namely Roosi Adulji, Muhammad Tahir and Rafaqat were absent in spite of the fact that they were served. It is further submitted by the learned counsel and he had made a statement at the Bar that he had appeared in the case in the trial Court and in the morning he went to the Court and was informed that the case could not proceed because A.P.P. was on leave as such he went away to attend to other work. Second occasion is also pointed out that on 9‑5‑1984 an application was filed for adjournment on behalf of the counsel for applicant on the ground that his son met with an accident at Lahore as such he had to go there. The case was adjourned to 23‑5‑1984. Order sheet, dated 9‑5‑1984 shows that even otherwise the case would not have proceeded because accused persons were not produced in custody from Jail. There is direction from the Court on that day for issuance of production order of accused persons. There is also a sentence in the order sheet of that date that accused persons are remanded to jail custody. Mr. Jawaid Haider Kazmi has explained that this sentence is there due to inadvertance because otherwise the Court would not have directed for issuance of production order.

It is submitted by Mr. Jawaid Haider Kazmi that on 5‑3‑1984 the case was adjourned to 23‑3‑1984 and an impression is gatherable from the perusal of order sheet of that date that it was at the behest of applicant Javed Iqbal but it was not so. It is submitted that the order sheet of that date shows that an application was filed ‑ on behalf of Javed Iqbal on 24‑11‑1983 for supply of legible copies of police statements and other documents as required under section 265(c), Cr. P. C. and the Court passed order thereupon granting the request and in compliance with that order legible copies were supplied to the applicant in the Court on that date and such receipt was obtained on the back of application Exh. 1 hence two witnesses namely Roosi Adulji and Tahir who were present in the Court were bound down to be examined on the next date of hearing. Certified copy of the application under section 265(c), Cr. P. C., dated 24‑11‑1983 and order passed thereupon 'is produced alongwith memorandum of bail application.‑ Order of the Court is reproduced hereunder:‑

"S.H.O. to supply the legible copies or correct the copies already supplied by inserting missing words so as to legibly read. Also suppy copies of site inspection and the memo. of recovery, if any."

It is submitted by Mr. Jawaid Haider Kazmi that short adjournment reflected in order sheet, dated 5-3‑1984 is on account of compliance of the order of the Court and .for a very valid reason which is allowed' under the law: Section 285(c), Cr. P. C. Is mandatory in nature and the word "shall" is used for supply of legible copies. It is further argued by the ‑learned counsel for the' applicant that in this way no delay at all is attributable to the present applicant and since as stated, above the trial did not conclude within the statutory period of two years applicant is entitled' to bail. Arguments of the learned counsel are quite consistent with the record and particularly the order sheet from the record of trial Court which has been produced. I, therefore, admit applicant to bail in the sum of Rs.50,000 with two sureties and P.R. each in the, like amount to the ,satisfaction of the trial Court.

H. A. K. Bail granted.

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