1. ' This bail application is moved inter alia on the ground of delay in conclusion of the trial. The applicant Gulee alias Ghulam Nabi is stated to be facing trial under section 17 (3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979. He failed to get bail from the trial Court for two reasons: Firstly that the applicant shared the blame for the delay as on 15-12-1984 although six prosecution witnesses were in attendance, the case was adjourned on the applicant's motion; secondly that the applicant is dangerous and desperate criminal.
2. ' According to the prosecution case the applicant was one of the six decoits who allegedly looted the jewellery shop in Latifabad, Hyderabad. However, the names of the decoits do not transpire in the F.I.R. As they were unknown to the complainant Salmanuddin and his brother Luqman who were present in the shop at the time of occurrence and also to the witness Dr. Shamsuddin, Raees Ahmed and Chotey Khan who were attracted on cries of the above two brothers.
3. ' Mr. Muhammadali Shaikh was heard in support of the bail application and Mr. A.A. Muhammadally, Asstt. A.-G. Submitted his arguments on behalf of the State.
4. ' The learned counsel for the applicant vehemently denied the osbervation of the learned trial Judge that the applicant was arrested on the very day of the occurrence in course of a police encounter. He made the statement at the bar that applicant was arrested from his house after seven days from the occurrence. His statement finds confirmation from the police challan. The learned counsel further submitted that there was no material before the trial Court to draw inference that the applicant is dangerous and desperate criminal. According to him co-accused Khaliqdino has already been released on bail. He has produced the order of his release in support of his argument. I am inclined to agree with the argument that if the applicant's participation in the commission of the dacoity is the sole reason to dub him as the criminal of the desperate type, there was no justification to allow the concession of bail to the co-accused with identical allegation of his involvement in the commission of dacoity.
5. ' Coming to the point of delay in conclusion of the trial within statutory period of one year, it was without saying that although the applicant has remained in jail for over one year, the case has not concluded. No doubt one adjournment of the case on 15-12-1984 is creditable in the applicant's account, the question arises if for that reason alone he will be deprived of the right of getting bail which was otherwise due to him. In this connection reference is invited to several authorities. The first case referred to is the unreported case of Supreme Court, Abdullah v. The State and another (Criminal Appeal No,K-1 of 1980, Bail Matter) decided on 8th January, 1980. In this case although the petitioner had been in custody for more than two years, and the hearing of the case had been delayed on five occasions at the instance of the petitioner; it was held: "That is true, but even if the periods for which the case was adjourned at the petitioner's request are excluded, the petitioner has been behind bars for more than two and half years. Yet the learned Advocate-General is not able to give any assurance as to when the case would be heard. We are, therefore, satisfied that the petitioner is entitled to bail because the delay in the hearing of the case, which is not due to his fault is unconcionable."
6. ' The next case referred to is of Akhtar Abbas v. The State PLD 1982 SC 424 wherein it was held:- "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."
7. ' Again in the case of Wazir Khan v. The State 1983 SCMR 427 the Supreme Court was pleased to observe:- "From this it is obvious that the delay which has occurred in the commencement of the trial is neither attributable to the petitioner nor to any other person acting on his behalf, and it is not proper that the petitioner should suffer merely because the police is unable to apprehend Muhammad Khan, co-accused."
8. ' The fourth case in the series is of Nazir Hussain v. Ziaul Haq and others 1983 SCMR 72 wherein the Supreme Court expressed its views on grant of bail on the ground of delay under proviso (3) to section 497(1) (b), Cr.P.C. In the following words:- "The learned Judge in the High Court, with respect, it may be pointed out, was under an impression as if not only past delay of two years but also future expected delay of similar period can also be made the basis of bail under sub-clause (b). This interpretation it is again pointed out with respect, is violative of the clear language used in the statute. It provides that the accused must have been detained. For a continuous period.... Exceeding two years. Obviously future apprenended delay is not convered by the statute; otherwise, in Courts clogged with heavy arrears, the accused in murder cases which are not likely to be taken up for a period of two years or above, would be entitled to claim the concession of bail as of right, even on the next day of their arrest; which could not be the intention of the legislature."
9. ' Proceeding further the Supreme Court has observed: "Moreover, reading 'may' for the word 'shall' in third proviso would be in large majority of cases to the detriment of the accused and his liberty, when it becomes due in the context of bail. We accordingly repel the argument of the learned counsel and hold that word 'shall' in third proviso will have to be read in its ordinary sense."
10. ' At another place in the same judgment the Supreme Court has held:- "Another argument advanced by the learned counsel; namely, that even if it is mandatory under the third proviso to section 497 (1), Cr.P.C. For the accused to complete two years continuous period of detention before seeking bail on ground of delay, residuary power with the Courts concerned to grant bail on so-called general delay even if it is less than the specified period, remains intact, is also without any force. The legislative intervention has consolidated and codified the law which earlier prevailed with regard to the grant of bail on ground of delay in cases specified in third proviso to section 497, Cr.P.C. The matter is so obvious that no discussion is necessary in this oehalf."
11. ' The last case relied in the same context is of Muhammad Yakoob alias Qoobi v. The State PLD 1984 SC 1 wherein it was held: "Irrespective of the delay caused by the pendency of the case before Military Court and delay of the return of the file for the Court of Sessions, some part of the delay was certainly caused by the absence of the accused on some of the dates fixed for trial. As such we are of the view that the learned Judge in Chamber was justified in refusing bail to the petitioner."
12. ' The position that emerges from the above authorities is that while examining the question of delay, the Court is required to see who is mainly responsible for the delay. If the Court is of the view that the delay is largely due to accused or any one acting on his behalf, it shall invariably refuse to grant bail to the accused on the ground of delay. This should, however, not be construed to deprive the accused of his right to seek adjournments even on genuine grounds. In the instant case the accused had sought only a single adjournment which, in my opinion, is not enough to disentitle him to avail the benefit of bail concession on the ground of delay. Accordingly bail was granted to accused in the sum of Rs,20,000 and P.R. Of the same amount to the satisfaction of trial Court.