1. ' This application for bail is moved by the applicant who is facing trial alongwith three others in Sessions Court, Khairpur for offences punishable under sections 302, 307, 447, 147, 148, 149, P. P. C.
2. And 13-D of Arms Ordinance.
3. ' The case for the prosecution in the brief is, that due to enmity over land the present applicant alongwith four others, on the night between 8th and 9th May, 1986 entered in the house of Darghai and caused murder of Darghai and caused injuries to Mst. Kazbano, Jan Muhammad and Imam Bux. One of the said accused party namely Ghulam Hyder was also murdered but no counter- complaint was lodged.
4. ' The main ground urged by the learned counsel for the applicant is that the applicant has remained in custody for more than two years but the trial has not concluded. This ground was agitated before the learned trial Court who rejected this plea on the ground that the case was being adjourned at the request of co-accused and that the applicant is dangerous desperate person. Admittedly the applicant has remained continuously in jail for more than two years but the trial has not concluded. The charge has been framed on 3-2-1986. The accused who has remained in custody for more than two years is entitled to be released on bail as a matter of right under the 3rd proviso to subsection (2) of section 497, Cr. P. C. Unless the delay has been occasioned due to any act on the part of the accused or any person acting on his behalf. A co-accused cannot be said to be acting on behalf of the another accused person, when he seeks adjournment. Therefore, he cannot be denied the concession under the 3rd proviso because of any act of omission or commission on the part of the co-accused.
5. ' The consession extended by the 3rd proviso would be denied to a person whose case falls under the 4th proviso. The fact that he is facing murder charge per se would not make the accused a dangerous and desperate or hardened criminal. The 3rd proviso specifically extends this consession even to persons who are accused of offence punishable with death. The learned trial Court has opined that the applicant is a dangerous and desperate person because of his alleged act of entering in the house of the deceased and causing his death. The F. I. R. Does not attribute any injury caused by the appellant to the deceased. He is alleged to have given hatchet blows to Mst. Kaz Bano. The medical evidence shows injuries on her person caused by hard blunt weapon.
6. Under the circumstances the applicant cannot be considered to be a dangerous and desperate criminal so as to be denied the concession of bail under the 3rd proviso. In view of this fact, the learned Additional Advocate-General, has no objection to the release of the applicant on bail under the 3rd proviso of subsection (2) of section 497, Cr. P. C.
7. ' The applicant is ordered to be released on bail on furnishing surety in the sum of Rs. 50,000 and P.
8. R. Bond in the like amount to the satisfaction E of the trial Court.