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Criminal Bail Application No. 692 of 1986 decided on 1^st June, 1986.

‑‑‑S. 497, third proviso‑‑Use of word 'shall' in third proviso to S. 497, Criminal Procedure Code, held, left little discretion for Court to refuse grant of bail to accused under circumstances stated therein but that would be only in cases where in opinion of Court such delay had not been occasioned by any act or omission of accused or some other person acting on his behalf‑‑Obtaining of adjournments in case by accused would not ipso facto disentitle him to avail concession under S. 497, third proviso unless in opinion of Court such adjournments had occasioned delay in trial. [interpretation of statutes].

Akhtar Abbas v. The State P L D 1982 S C 424: Nazeer Hussain v. Zia‑ul‑Haq 1983 S C M R 72: P L D 1986 Kar. 224 and Muhammad Yousaf v. The State and another 1986 P Cr. L J 1246 ref,

‑‑-----S. 497‑‑Penal Code (XLV of 1860), S. 302‑‑Bail‑‑Delay due to seeking of adjournments---‑Out of nine adjournments given by, Court, eight were obtained by accused when prosecution witnesses were present and case could have proceeded before trial Court‑‑Accused as such himself contributed towards delay‑‑Bail refused.

Abdul Rasool Agha for Appellant.

A.G. Mangi, A.A.‑G. for the State.

The only ground urged by Mr. Abdul Rasool Agha, learned counsel for the applicant is that the applicant has remained in custody beyond two years i.e. from 12‑1‑1986 till to date and some prosecution witnesses are still to be examined in the case including those who have been re‑called by the learned trial Court for cross‑examination. The applicant who is charged with committing offence under section 302. P.P.C. is seeking benefit under the third proviso to section 497, Cr.P.C. Although Mr. Abdul Rasool Agha concedes that the applicant had attained six adjournments which caused delay in the proceedings far a total period of seven months, plus some days, but further contention of the learned counsel is that even if this period is deducted from the total period for which the applicant has remained in custody, he would still be entitled to the benefit under the said proviso.

2. Mr. A.G. Mangi, the learned A.A.‑G. has however, drawn my attention to Akhtar Abbas v. The State P L D 1982 S.C 424, wherein it had been held that the requirement of law was not to calculate the amount of delay caused by the defence. In that case, discretion exercised by the High Court against the accused, resulting in the dismissal of his bail application was held to have been properly exercised. As against this, Mr. Abdul Rasool Agha has invited My attention to another case of the Supreme Court reported as Nazeer Hussain v. Zia‑ul‑Haq 1981 S C M R 72, wherein it was held that the third proviso to section 497, Cr.P.C. had left no discretion for the High Court in the matter of bail. This case decided by the Supreme Court was relied upon by this Court in P L D 1986 Kar. 224. Relying on the last two cases, Mr. Abdul Rasool Agha has contended that grant of bail on the ground of delay is not discretionary, but the accused is entitled to bail as a matter of right if his case falls within the purview of third proviso to section 497, Cr.P.C. Such matter also came up for consideration before a learned Single Judge of this Court in Muhammad Yousuf v. The State and another 1986 P Cr. L J 1246 and the learned; Judge after considering various authorities on the point came to the same conclusion as was held in P L D 1982 424.

3. The language used in the third proviso to section 497, Cr.P.C. clearly shows that a person, being accused of an offence punishable with death, if he has been detained for such offence for a continuous period exceeding two years and his trial for such offence has not concluded, shall be released on bail: However, he is not to be so released if the Court is of the opinion that delay in the trial of such person had been occasioned by n act or omission on his part or some other person a ting on his behalf. The use of the word "shall" in the said proviso, no doubt, leaves little discretion for the Court to refuse the grant of bail to such person under the circumstances stated therein; but that would be only in cases when in the opinion of the Court, such delay has not been occasioned by any act or omission of the accused or some other person acting on his behalf. Thus, in my opinion, obtaining of adjournments in the case by the accused would not ipso facto disentitle him to avail the concession under this proviso, unless in the opinion of the Court, such adjournments had occasioned delay in the trial.

4. In this case according to the case diary, the total adjournments obtained by the accused are nine out of which at least eight appear to have been obtained by the applicant when the prosecution witnesses were present and the case could have proceeded before the trial Court. Thus the applicant himself contributed towards the delay.

5. Under these circumstances, I have no option, but to dismiss the bail application.

M.Y.H. Bail refused.

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