' SHAH NAWAZ TARIQ, J . --Through the instant bail application, applicant Mehboob Kaloo seeks his release on bail in a criminal case, culminating from F.I.R. No,128 of 2009 registered at Police Station Kandiaro, for offences under sections 302, 324, 34, P . P. C .
2. The facts in brief germane to the present bail application are that on 11-8-2009 at 1100 hours, when the complainant Gulsher had gone to the land along with his two wives namely Mst. Subhan Khatoon, second wife Mst. Zahida and brother Abdul Rasheed in the cotton crop for cutting grass, where they filled two bags of grass and his wives were bringing said bags. The second wife of complainant namely Mst. Zahida was ahead of them while his first wife namely Mst. Subhan Khatoon and his brother Abdul Rasheed were coming behind and when they reached at the garden of Ali Nawaz Kaloo, all of sudden, accused Mahoob armed with gun and accused Rano having pistol emerged out from lemon garden, who challenged the complainant that they would not spare Mst. Zahida. By saying so, accused Rano directly fired upon Mst. Zahida from his pistol, which hit at her left side of shoulder, and she thrown the bag of grass in the water course and rushed towards garden of Ali Nawaz, but accused Mahboob followed her and by putting his leg on her chest, directly fired from his gun in her mouth, thereafter both the accused came running and directly fired in order to kill the complainant, but such fires were missed. The complainant raised cries, which attracted P.Ws Gulsher son of Muhammad Paryal Kaloo and others, whereupon accused fled away towards their houses. After departure of accused, he found that his wife Mst.
Zahida was sustaining five fire shots injuries at her face and left shoulder and had succumbed to her injuries. Such F.I.R. Was lodged by the complainant at Police Station Kandiaro.
3. On the basis of such F.I.R., the applicant was arrested and after completion of investigation, challan was submitted in the trial court. The applicant moved his earlier bail application on merits before the trial court, but the same was declined vide order dated 5-4-2011. Thereafter the applicant repeated his bail application before the trial court on statutory ground of delay in .Conclusion of the trial which was again resulted in dismissal of the said bail application vide order dated 1-11-2011. The applicant thereafter filed the present bail application before this Court; and this Court vide order dated 16-8-2012 while keeping this bail application in pendency and adjourning the same on 11-10-2012, and directed the trial court to record the evidence of all material witnesses within one month and submit such report. Accordingly, the trial Court submitted its detailed report dated 5-4-2013 before this court, wherein it has been stated that material witnesses have been examined by the prosecution and now official witnesses have to be examined, however, the defence counsel has obtained 10 adjournments while P.Ws were present in court.
4. Mr. Muhammad Iqbal Memon, learned counsel for the applicant has contended that the applicant is in Jail since 15-8-2009 and the delay in inclusion of trial is not on the part of the applicant as such his case falls within the ambit of subsection (3) of section 497 Cr.P.C, therefore, he is entitled for grant of bail. He has relied upon 2012 SCM R 354, 1996 PCr.LJ 1440, 2002 YLR 3625, 2004 YLR 2027, 2008 SCM R 1448, 2004 PCr.LJ 1154 and 1991 PCr.LJ 534.
5. Counsel for the complainant Mr. Manzoor Ahmed Junejo has, inter alia, vehemently opposed the instant bail application and has contended that the material witnesses have been examined by the trial court as per directives issued by this Court vide order dated 16-8-2012. Further contended that the applicant has sought adjournments for 10 times while witnesses were present before the trial court and such fact has been mentioned by the trial court in detailed report dated 5-4-2013 submitted before this Court. Now only official witnesses i,e, I.O. And M.L.O. Etc. Are remained to be examined. He has relied upon 1998 SCM R 897 and 2002 SCM R 1381.
6. Learned A.P.G. Has also vehemently opposed the instant application and has contended that though there is delay in conclusion of the trial but applicant has committed murder of deceased Mst. Zahida who was sister of the applicant, in brutally manner, therefore, he is not entitled for bail on the ground of delay being a dangerous culprit. He relied upon the case of All Muhammad and another v. The State, 2009 PCr.LJ 521.
7. I have considered the contentions raised by the learned counsel for the parties and learned State counsel and have perused the material available on record.
8. It is an admitted position that prosecution has already examined the material witnesses as directed by this Court and at present only official witnesses are to be examined. The report was called from the trial court and the learned III Additional Sessions Judge, Khairpur has submitted report vide letter dated 5-4-2013, wherein the court has noticeably mentioned that during trial the defence counsel has sought following 10 adjournments viz. 28-12-2010, 18-4-2011, 17-9-2011, 21-9- 2011, 20-10-2012, 22-10-2012, 17-11-2012, 6-12-2012, 14-12-2012 and 20-12-2012 while prosecution witnesses were in attendance before the court. It is pertinent to mention that production of witnesses in contested criminal cases where parties are involved in deep enmity, is most difficult issue particularly in the present scenario of enmity, therefore, even a single adjournment sought by the defence could not be counted a routine adjournment in a lenient manner, as the safety and protection of life of the witnesses always remain on stake. Admittedly, in present case the defence has sought 10 adjournments from the trial court while P.Ws were in attendance for recording of their evidence, therefore, this act of defence is based purely on mala fide with sole motive to frustrate the process and scheme of the production and examination of witnesses by the prosecution to conclude the trial. In case of Abdul Rasheed v. The State, 1998 SCM R 897, it has been held that where for any reason accused or his authorized agent which necessarily includes the Advocate engaged for defence causes delay, protection contained in third proviso to S.497(1), Cr.P.C. Cannot be invoked. While ascertaining cumulative effect of ultimate delay in disposal of the case, it would not be merely mathematical calculation of excluding such days for which adjournment was obtained by accused or his counsel. It is further held that bail under third proviso to S.497(1) Cr.P.C. Can be certainly refused on the ground that the delay in conclusion of trial had been passed on account of an act or omission of accused or any person acting on his behalf.
Counsel for accused had obtained 7 adjournments on the dates when prosecution witnesses were in attendance, accused, therefore was not entitled to avail the benefit of third proviso to 5.497(I), Cr.P.C, courts below having correctly construed the legal position, leave to appeal to Supreme Court was refused. In the case of Lal v. Allahyar and another, 1993 SCM R 525, it has been held that court can take into consideration oilier material produced by the prosecution in order to show that the case falls within prohibition contained in S.497(1), proviso (4), Cr.P.C. It has further been held that if the accused persons had killed the deceased in brutal way in order to disgrace the deceased, one could urge that the accused were hardened, desperate or dangerous criminal in terms of S.497(1), proviso (4), Cr.P.C. In the case of Muhammad Hanif v. The State, it has been held that the proviso to S.497(1), proviso (3), Cr.P.C. Puts restrictions on Court to grant bail on ground of statutory delay, if accused was hardened, desperate or dangerous criminal, it was for prosecution to produce material which should be sufficient for Court to form an opinion that person was hardened, desperate or dangerous criminal. In the case of Shair Khan v. The State, 2009 PCr.LJ 521(Karachi), it has been held that accused .Admittedly were in custody for the last more than three years and not a single witness had so far been examined in the case. However, according to F.I.R. Accused along with other accused persons duly armed with Kalashnikovs, had brutally murdered the deceased by straight firing on him with their respective weapons. Accused did not deserve for grant of bail on the ground of hardship in circumstances and they were refused bail accordingly. From the above verdicts of the superior court it is crystal clear that accused could not be permitted or ignored by adopting delaying tactics during the trial purely on mala fide and ulterior motive to manage to achieve the task of delaying the trial merely by mathematical calculation of excluding such days for which defence counsel sought adjournment on one or another pretext. The trial court must examine, minutely all the circumstances particularly the factum of brutality of offence while extending the benefit of delay in conclusion of trial in the account of accused.
9. In the facts and circumstances referred supra, undoubtedly the applicant/accused Mehboob Kalo has committed the brutal murder of the deceased Mst. Zahida, as firstly co-accused Rano fired pistol shot which hit her on her shoulder and tc save her life, she rushed towards the lemon garden but the present applicant chased her till the lemon garden and when she fell down, accused/applicant by putting his leg on her chest directly fired in her mouth and there were five holes on her body, as such the present applicant has committed her murder brutally, therefore, the applicant is not entitled for grant of bail mere on the ground of delay in conclusion of trial while defence counsel sought 10 adjournments besides the presence of prosecution witnesses before the trial court. Moreover, at present only official witnesses are to be examined by the prosecution, therefore, the trial court is directed to conclude the trial and decide the case within three months without fail. Learned Sessions Judge Khairpur is also directed to facilitate the trial court to procure the attendance of official witnesses to expedite the trial within above stipulated period and if it is necessary to achieve the task, he may transfer the subject case to his own court or assign the trial of said case to any other court of Additional Sessions Judge of the district. In this context SSP Khairpur is strictly directed to ensnre personally the production and attendance of I.O. And other official witnesses before the trial court. Medical Superintendent, Khairpur is also strictly directed to direct concerned M.L.0 to appear before the trial Court without fail. The Additional Registrar of this court is directed to send copy of this order to SSP Khairpur and Medical Superintendent, Khairpur for compliance of the directives of this court as mentioned supra.
10. For the foregoing reasons, observations and directions, instant criminal bail application stands disposed of.