SHER ALI Versus STATE

ORDER

The petitioner through the present petition has sought post‑arrest bail in a case registered vide F.I.R. No.318 of 1989 dated 17‑11‑1989 under section 302/148/149, P.P.C. at Police Station Sharqpur Sharif, Tehsil Ferozewala, District Sheikhupura.

2. The present petition contends for bail on behalf of the petitioner on statutory ground. The learned counsel for the petitioner submitted that the challan against the petitioner has been submitted to the learned trial Court on 28‑6‑1994 and that as the trial of the petitioner has not concluded till date, therefore, he is entitled to being enlarged on bail in accordance with the provisions of third proviso of subsection (1) of section 497, Cr.P.C. The said provision is reproduced hereinbelow:‑

"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 or in exercise of any right or privilege under any law for the time being in force, direct that any person shall be released on bail‑‑

(a) ...........

(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: "

3. However, it has been taken notice, of, as very fairly pointed out by the learned counsel for the petitioner, that the petitioner accused had not engaged a counsel for his defence till 14‑1‑1996, on which date the learned Trial Court had appointed a counsel to defend him; and the learned counsel has further pointed out that on the next date of hearing i.e. 25‑1‑1996 the said defence counsel for the petitioner accused was not available and that, therefore, the case was adjourned to the next date of hearing.

4. Therefore, on being pointed. out by the Court, that at best, the time shall start running in favour of the petitioner accused after the said date of hearing i.e. 25‑1‑1996 and that, as such, even without going into the details whether or not the subsequent adjournments were occasioned because of the conduct of the petitioner accused or any one acting on his behalf, the statutory period of 2 years will expire on 24‑1‑1998, the learned counsel of the petitioner argued that as copies of statement under section 161, Cr.P.C. were distributed on 31‑10‑1995, therefore, the period between the submission of challan i.e. 28‑6‑1994 and the distribution of the said statement on 31‑10‑1995 can be counted toward the delay occasioned in the conclusion of the trial and that the benefit thereof should go to the accused petitioner as the said period between the two dates stated above i.e. 28‑6‑1994 and 31‑10‑1995 comes to 1 year 4 months and 3 days, and concluded by submitting that since the appointment of the defence counsel by the learned Trial Court on 14‑1‑1996, another 1 year 3 months and 16 days have expired, therefore, the sum total of the two periods highlighted comes to more than 2 years and, as such, the provisions (b) of third proviso of subsection (1) of section 497, Cr. P. C. can be pressed into service on behalf of the petitioner, entitling him to bail in the instant case.

5. The Court has given its anxious consideration to the contentions raised on behalf of the petitioner. In this respect special notice has been taken of the fact that the petitioner had been an 'absconder' for a long time and as a result his co‑accused was sent up for trial separately and that by the time the petitioner had surrendered himself to the law; the record of the case was not available to the learned trial Court to try him as the same was being requisitioned by the superior Courts i.e. High Court and the Honourable Supreme Court on different occasions that had led to the delay being caused in the conclusion of his trial. It has been further taken notice of that the petitioner has not been vigilant enough to engage a counsel for himself or to move a petition for the appointment of a counsel on his behalf by the learned trial Court till 14‑1‑1996 i.e. on the date a defence counsel was appointed on his behalf by the learned trial Court. Therefore, the Court is of the considered view that under the facts and circumstances highlighted above, the provisions (b) of third proviso of subsection (1) of section 497, Cr.P.C. cannot be invoked on his behalf at this stage.

6. Therefore, for the aforestated reasons, the present petition for bail on statutory ground is hereby dismissed.

N. H. Q./S‑115/L ?????????????????????????????????????????????????????????????????????????????? Bail refused.