1. This is a bail application on behalf of three applicants who have been charged under section 302/307/34, P. P. C. Earlier bail application was filed by applicants Nos. 2 and 3 namely, Neseem Khan and Kadeem Khan which was rejected by me on 12-1-1981. Full facts have been stated in that order and I need not repeat the same here. After that the only development is that the matter has proceeded and 5 P. Ws., who are eye-witnesses have been examined. After the challan, the first hearing was fixed on 16-2-1980. Till 8-12-1981 the case was fixed for 41 hearings. The applicants made applica--tion for bail before the learned trial Court mainly on the ground that although two years have passed the hearing has not been completed, there--fore, they may be admitted to bail.
2. This plea did not find favour with the learned trial Court and it was held that as on 9 occasions the learned counsel for the applicants have taken adjournments the case does not fall within the provision of section 497, Cr. P. C. Mr. I. A. Hashmi, the learned counsel for the applicants has pointed out that he had taken only 6 adjournments on 30-9-80, 11-10-80, 6-12-80, 5-4-81, 28-0-81 and 29- 4-81 by filing applications. The learned counsel contends that for all other requests shown to have been made in the diary sheet of the Court there is no application en record. On that basis the contention is that the conduct of the applicants' counsel was not such as to cause delay. A persual of the diary sheet will show that besides the dates on which he has applied for adjournments oral requests seem to have been made in his absence by his junior counsel perhaps for accommodation and the matter was adjourned. There are certain instances also hereafter examining P. Ws. Although other P. Ws. Were present the defence counsel requested for adjournment which was granted. This clearly shows that although no application was made the adjourments were sought and therefore there is nothing on record to suggest that the observations made in the diary sheet by the learned trial Judge in his order dismissing the bail application are not correct. Mr. Hashmi, the learned counsel for the applicants has contended that a total delay by such adjourn--ments would have been not more than 5 months whereas the applicants are in jail for more than 2J years. In this regard the learned counsel wants to compute the period as after computation of five months the detention comes to more than two years, it has been contended that the applicants are entitled to bail. In this regard Mr. Ibrahim Memon, the learned A. A. G. Has referred to Akhtar Abbas v. The State (PLD 1982 SC 424), where following observations has been made :- ---We regret we are not impressed by these submissions, as we find that the requirement of the law is not fulfilled in this case, as at least on eight occasions adjournments were sought by the defence for one reason or the other. In such a case it does not appear to be the intention of the law to calculate the amount of delay caused by the defence. All that is necessary is to see whether the finalization of the trial has, in any manner, been delayed by an act or omission on the part of the accused. In the present case, the delay is partly attributable to the accused.--- In view of this observation the contention of the learned counsel for the applicants has no force. Mr. I. A. Hashmi, then pressed the application on behalf of the applicants Nos. 2 and 3. He has taken me through the evidence of all the 5 witnesses who are eye-witnesses and has contended that none of them have assigned any role to them in the murder of Ghulab Sher. It is correct that no role has be assigned to applicants Nos. 2 and 3 as alleged nor such a role was assigned to them in the F. I.
3. R. However all the eye-witnesses have assigned role of causing injury by sharp-edged weapon by both the accused to four persons which could have likely effect of causing death to such persons.
4. The P. Ws. Have stated that applicants Nos. 2 and 3 have caused injuries with sharp weapon to 4 persons who are eye-witnesses of the incident. From the evidence it seems that Rehman Gul was attacked by Naseem and Nawab Sher was attacked by Kadeem who received various injuries caused by sharp-weapon on their vital parts of the body. Both the persons were hit on the chest.
5. After Rehman Gul and Nawab Sher fell down receiving injuries from Churi caused by applicants Nos. 2 and 3, Lal Khan, Khan Wali and Akhtar Shah tried to intervene and Naseem caused injury to Akhtar Shah by Churri and Kadeem caused injury to Khan Wali by Churi. The statements of P. Ws.
6. Are corroborated by each other. On the basis of the evidence recorded so far it seems that both the applicants had inflicted injuries which could have caused death. This observation is based on prima facie reading of the evidence and without looking into the evidence of the doctor or the medical report which has not been produced before me. It should not in any manner prejudice the trial or the overall assessm ent of evidence by the trial Court.
7. Mr. I. A. Hashmi, the learned counsel for the applicants contended that none of the injuries alleged to have been inflicted by the applicants Nos. 2 and 3 are grievous injuries and therefore there is no possibility of the applicants Nos. 2 and 3 being convicted under section 307 or 326, P. P. C.
8. Mr. M. I. Memon, the learned counsel for the State has supported the applicants on this point. He has referred to PLD 1972 SC 277 and 1973 P Cr. L J 205. In the later case on the direction of the Supreme Court (PLD 1972 SC 277) the High Court on reconsideration of the evidence and . Facts of the case granted the bail and observed that "While considering the questions whether a case fell within the prohibition contained in subsection
(i) of section 497, Cr. P. C. The Courts are not supposed to keen in view only the maximum sentence (of transportation for life) provided in the relevant law. If in a particular case, the Court is in a position to come to a conclusion on the date placed before it even at bail stage, that the prosecution case taken to its extreme would not entail the maximum punishment, it would go out of the prohibition. The court would then have the jurisdiction to grant or, refuse bail in exercise of its discretion."
9. Without entering or deciding upon the merits of the case, on the basis of evidence on record and further as none of the parties have produced medical report to show that the injuries inflicted by the applicants are simple in nature it is not possible to conclude that the prosecution case would not entail the maximum punishment. Mr. I. A. Hashmi, the learned counsel for the applicants has cited all those cases which have been discussed in my order dated 12-1-1981 and I need not repeat the same.
10. In view of the above discussion the application is rejected. The trial Court is directed to conclude the trial within three months.