1. ' On 3-5-1985 at about 6.00 p.m. a quarrel had taken place between the parties in which from the side of complainant, Haji Haroon and Noor Mohammad, were killed, whereas, Hasham, Saleh Mohammad and Siddique were injured. From the side of the accused respondent Essa and co- accused Tar Muhammad received fire-arm and hatchet injuries. The counter-FIRs were lodged.
2. Co-accused Tar Mohammad, Ayoob and Allano were released on bail by this Court. Supreme Court has granted leave to appeal against the release of co-accused Tar Muhammad on bail, but the matter has not been finally decided.
3. ' After expiry of period of two years, bail application was moved before the Ilnd Additional Sessions Judge (South), Karachi under proviso (1) of section 497. Cr.P.C. The learned Additional Sessions Judge by his order dated ,10-5-1987 has granted bail to respondents Essa and Ibrahim, on the ground, that the period of two years has been completed in respect of both these respondents.
4. They have remained in custody as under trial prisoners during this period and the trial could not be concluded. The learned Additional Sessions Judge was of the view, that the delay in the conclusion of trial cannot be assigned to the respondents. He was also of the view that the respondents were not previous convicts, desperate, dangerous or hardended criminals.
5. Mr.Kaikobad was trying to stress on the point, that the learned trial Court was not justified in holding the prosecution responsible for that delay in trial for six months during which the respondents could not be produced before the Court due to disturbances in the city, and for three months police papers were blocked in this court and of course for one month for which adjournment was sought by the defence counsel. I am unable to agree with these contentions of the learned counsel for the applicants for the simple reason that the proviso referred to by him is to the effect "that the Court shall except where it is of opinion that the delay in the trial of the case has been occasioned by an act or omission of the accused or any other person acting on his behalf.
6. It is, therefore, quite clear, that the Court has not to see, as to whether prosecution can be said to be responsible for the delay or not but the Court has to see, whether the delay has been occasioned by an act or omission of the accused or not. The non-production of the accused by the jail authorities on the dates o hearing due to the disturbances in the city, cannot be attributed to the accused nor can the delay in trial due to the fact, that the police papers were lying in this Court, be attributed to the accused.
7. I, therefore, do not find any merit in this application. The learned Additional Advocate-General, Mr.A.A. Mohammadally also c states, that he is not able to support the application for cancellation of bail. The application is, therefore, dismissed.