1. The learned Advocate for the applicant submitted, that the applicant had already remained in custody for over one year and only one prose--cution witness was examined on 14th October, 1980, but till today his cross-examination has not taken place and the delay in disposal of the case is not due to any fault on behalf of the applicant and as such on this ground alone the applicant is entitled to grant of bail. The learned Advocate further submitted, that two prosecution witnesses, namely, Khuda Bux, son of Ilyas and Shafi Muhammad, son of Jumo have given their affidavits, in which they have stated that the vehicle which hit them was a wagon and not a bus and the driver of the said vehicle was Negro (Shedi) with gray hair, while the applicant/accused has white complexion and has no grey hairs at all. In support of this contention, the learned counsel showed identification card of the applicant, and relied upon cases reported in 1979 SCMR 137, 1979 SCMR 30 and 1981 P Cr. L J 1080. The learned Additional Advocate-General appearing on behalf of the State has opposed the above bail application, on the ground, that delay in disposal of the case is not due to the prosecution, but due to the applicant/ accused, as discussed by the learned trial Judge in his comments, dated 28th May, 1981, sent to this Court in accordance with order of this Court, dated 28th May, 1981 and as such the learned Additional Advocate General has relied upon cases reported in 1980 SCMR 203 and PLD 1980 SC 225 and submitted that on this ground of delay applicant/accused cannot be granted bail. As far as the affidavits given by Khuda Bux and Shafi Muhammad are concerned, learned Additional Advocate-General submitted that these affidavits were not sworn before the trial Court and as such the authorities relied upon by the learned Advocate for the applicant do not apply to the applicant/accused's case.
2. I have carefully considered the above submissions made by the learned counsel for the applicant as well as the learned Additional Advocate---General appearing on behalf of the State and perused the comments received from IVth Additional Sessions Judge, Hyderabad, dated 28May, 1981.
3. According to the comments of the learned IVth Additional Sessions Judge, Hyderabad, P. W. Jumo was examined on 14October, 1980 and on account of the misbehaviour of the then Advocate for the applicant, the cross-examination of the said witness could not be completed and as such the same was adjourned. However, the said learned Advocate for the applicant Mr. Moinuddin Baluch,, having realised his mistake, came to the Chamber and sought unconditional apology and because the said advocate was a junior Advocate, no action under contempt of Court or under section 480 of the Code of Criminal Procedure Code was taken against him. However, on the sam a day a acquaintance of the accused, who is a office Superintendent in Poli-Technique Institute and was known to trial Judge previously, came to his residence in connection with this case, due to an apprehension, that on account of unpleasant incident which took place in the Court room, the learned trial Judge might have become prejudiced against the accused. In view of this, the learned trial Judge in the interest of justice, on 18October, 1980, made a reference to the District & Sessions Judge, Hyderabad requesting him to withdraw this case from his file and to transfer the same to some other Judge. However, the said reference was rejected by the District and Sessions Judge, on the same day and it was because of these reasons, that the trial had been delayed for which according to the learned trial Judge, applicant was responsible. The certified copy of the diary sheet of the trial Court has been filed and according to this diary sheet case was adjourned to 20th November, 1980 and then to 15th December, 1980, 14th January, 1981, 1February, 1981, 11th February, 1981, 22nd February, 1981, 1st March, 1981, 5th March, 1981 and 26th April, 1981, on which date the R & P of the cage was received back from the learned Sessions Judge, Hyderabad, and as such it was fixed on 2nd May, 1981 for further proceedings. On 2nd May, 1981, no P. Ws. Were present and the matter was put of to 4th May, 1981 and on 14th May, 1981, again after bearing of arguments on bail application, it was adjourned to 16th May, 1981 for further arguments on the bail application and the main case was posted to lath June, 1981 for evidence perhaps as no P. Ws. Were present. The question which requires consideration is, whether applicant/accused could be held responsible for delay from 18th October, 1980 till 26th April, 1981, when the R & P of the case was received back from the learned Sessions Judge, Hyderabad, which was sent to him according to the comments of the learned trial Court on 18th October, 1980 for transfer of the case at the instance of the trial Court. It is evident from the comments received from the IVth Additional District Judge, Hyderabad, that his reference for transfer of the case from his file was rejected by the learned Sessions Judge, on the same day, i.e. 18th October, 1980, but still the R & P of the case was not received back upto 26th April, 1981. The delay in sending back the R & P from the Court of Sessions Judge, Hyderabad, to the Court of IVth Additional District Judge, Hyderabad, in no circumstances can be attributed to any action of the applicant. Furthermore, even after the receipt of the R & P, the case was adjourned to 2nd May, 1981 and 14th May, 1981, then too the cross-examination of P. W. I was not completed, as no P. Ws. Were present on these two dates. The authority cited by the learned Additional Advocate- General, 1980 SCMR 203 in support of his contention, that the delay in completion of the trial was due to the fault of the accused and as such the accused cannot be granted benefit of the law for his release on bail due to his detention for a period of over one year, is not applicable to the facts of the present case, as the said authority is based completely on different facts. Furthermore, perusal of the affidavits given by Khuda Bux and Shafi Muhammad show that the driver of the vehicle in question was grey hair Negro, whereas the applicant/accused is of fair complexion and does not have grey hair, which fact is not disputed by the learned Additional Advocate-General who, however, stated, that these affidavits were not sworn before the trial Court and as such cannot beth th th st considered for purposes of grant of bail and the reliance placed by the learned counsel for the applicant in this connection on the cases reported in 1979 SCMR 30 and 137, do not apply to the case of the applicant. In my opinion, the delay in disposal of the applicant's case was not due to any fault on the part of the applicant, as applicant cannot he held responsible for alleged misbehaviour of his then Advocate as well as for a person who approached the learned trial Judge on 14th October, 1980, as well as for delay in receipt of R & P of the case in question from the Court of Sessions Judge, Hyderabad, from 18th October, 1980, upto 26th April, 1981 and, therefore, applicant is entitled to benefit of section 497, proviso (1) (a). Furthermore, I find that the learned trial Court in his order, dated 19th May, 1981 has not at all considered the effect of the affidavits of P.
4. Ws. Khuda Bux and Shafi A Muhammad although this point was urged before him. In view of this the authorities reported in 1979 SCMR 30 and 137, fully support the contention of the learned counsel for the applicant, that in view of these affidavits, which are on record, further inquiry under the provisions of section 497 (2), Cr. P. C. Is necessary.