' Murder case against applicant Ali Hassan and 6 others is pending in the Court of 1st Additional Sessions Judge Khairpur. This bail application has been filed on the ground of delay in trial. Their bail application on merits has already been rejected by this Court on 29-10-1985 (Criminal Bail Application No, 673 of 1985). Second bail application bearing No, Criminal Bail Application No, 1839 of 1986 was also dismissed on 1-3-1987 as not pressed, the third Bail Application No, 700 of 1986, was dismissed due to non-prosecution.
2. Mr. Azizullah K. Shaikh has argued this fourth application on the sole ground of delay in trial. It is contended by Mr. Azizullah K. Shaikh, that applicants were arrested on 26-6-1985 and have remained in jail for more than two years and trial is not likely to be concluded in near future as Presiding Officer of the Court has gone on training. He argued that delay is on the part of prosecution, therefore, it is statutory right of accused to be released on bail. He has relied on the cases reported as 1984 SCM R 613, 1986 P Cr. L J 875, PLD 1982 Kar. 965 and 1982 P Cr. L J 2456.
3. Mr. A.Q. Halepota, appearing for the complainant contended that accused are dangerous and desperate as they brutally murdered Chodihyo that his every internal organ is cut, therefore, they are not entitled to bail under proviso 4 of section 497, Cr.P.C.
4. Mr. Murtaza Hussain appearing for the State, opposed the bail on the ground that applicants are desperate. He has referred to 1987 P Cr. L J 965.
5. It is an admitted position that accused have remained in jail for more than two years. Challan in this case was filed on 13-7-1985. On that date P.Ws. Were not present and case was sent up to Sessions Court on 19-2-1986. Copies of statements were supplied to accused. From 5-5-1986 to 12- 11-1986 on six hearings the case property was not available. On some dates defence counsel was also found absent but case was not sent up for trial as witnesses were not summoned. First time on 19-1-1987, two witnesses appeared and case was adjourned to 9-2-1987 for charge and trial. No adjournment was sought by accused. Diary of 9-2-1987 is as under:- "Accused Ghulam Kadir is present on bail. The rest of the accused under custody call for case property, Chemical report, Ballistic Report, statement under 164, Cr.P.C. And also D.P.P. Be informed for deputing some other A.P.P. As Mr. Abdul Jalil is Advocate for complainant.
' On 21-3-1987 three witnesses were present but adjournment was sought by accused, on 20-4- 1987, two witnesses were present but case was adjourned at the request of Assistant Public Prosecutor as he had no papers. On 25-5-1985 Mr. Anandram A.P.P. Did not appear."
' From the above assessm ent it is apparent that mostly case did not proceed due to fault of prosecution. Mr. Abdul Jalil Abro was perhaps A.P.P. Incharge. Thereafter he filed power for complainant, therefore, A.P.P. Had no papers or he remained absent. On 16-8-1987 Manthar appeared before this Court for complainant and sought adjournment. He was directed to produce witnesses before trial Court on 19-8-1987, which he did. Three eye-witnesses were examined at the directions of this Court otherwise case was not proceeding for which there is negligence of Court too.
' The bail order dated 30-6-1987 shows that learned 1st Additional Sessions Judge rejected the bail on the ground that applicants are desperate and dangerous as they caused fatal injuries to Chodihyo and delay for two months is on the part of accused. It has been observed that learned Assistant Public Prosecutor appearing for the State did not oppose the bail. The report of Superintendent Central Prison was called and he stated that Ali Hassan is not dangerous. The same are the grounds for rejection in order' of 16-7-1987. The second application in which D.P.P.
Appeared and opposed the bail.
There is no evidence that applicants are previous convicts or involved in any other case. Accused cannot be termed as desperate and dangerous only on the ground- that fatal injuries are caused.
Murder itself is heinous offence but in every murder case bail cannot be refused on ground that injuries are fatal. Delay in trial is also there. I am of the view that applicants are entitled to bail under proviso 3 of section 497, Cr.P.C. Applicants Ali Hassan, Ibrahim, Bilawal, Muhammad Sachal, Rasul Bux, Ghulam Ali and Muhammad Bux are admitted to bail on furnishing two sureties in the sum of Rs,50,000 (Rupees fifty thousand only) each with P.R. Bond in the like amount to the satisfaction of learned Sessions Judge, Khairpur. However, it is made clear that if accused protract the proceedings their bail could be cancelled without any reference to this Court.
' I am informed that Presiding Judge is on training. The learned Sessions Judge may recall the case and try himself or make over to other Judge and see that trial is concluded within three months.