1. ' Two applicants, namely, Oshaq and Ali Bux who are facing trial for offence u/ss 302, 307/34 PPC and 13-D Arms Ordinance, have applied for bail after arrest on the ground of statutory delay.
2. Applicants were arrested on 2-10-1986 and bail application was filed in this Court on 15-3-1989. Last date of hearing in the trial Court was 19-11-1989 and during the pendency of this bail application one more hearing took place in the trial Court on 2-12-1989. From the date of arrest up to 26-11- 1989 total time consumed was three years one month and twenty five days. Requirement as contemplated under third proviso to section 497 Cr. P C is that an accused person will be entitled to bail on the ground of dealy in a case which is punishable with death if the trial is not concluded within two years. In the present case the case was adjourned in the trial Court from time to time on more than 50 occasions. I have seen the relevant certified copies of the case diaries from the record'of the trial CoMt which have been produced on the record of this case for the hearing of bail application. In the case diaries there are 15 adjournments which can be safely put in their account and such time can be excluded from the total period of delay.
3. ' On 6-4-1987 case was adjourned for 16 days on the joint request of both applicants as counsel for Ali Bux filed Vakalatnama and applicant Oshaq requested for time to engage counsel. On 22-4- 1987 case was adjourned for 19 days at the request of applicants for further time. On 11-5-1987 case was adjourned for 28 days on the request of Mr. Soomro, counsel for applicants who filed application for adjournment. On 26-7-1987 case was adjourned for one day as Mr. Soomro had filed application for adjournment. On 27-7-1987 case was adjourned for 7 days as cross- examination of three witnesses was reserved on the request of counsel for applicants. On 3-3-1988 case was adjourned for two days on the request of advocate for applicants who wanted to cross- examine three prosecution witnesses together. The case was adjourned for 17 days on 5-3-1988, for 26 days on 22-3-1988 and for 17 days on 24-9-1988 on the basis of adjournment applications filed by counsel for applicants. On 10-10-1988 case was adjourned for 25 days because of adjournment application filed by the counsel for applicants and in consequence two PWs who were present could not be examined. The case was adjourned for 16 days on 18-4-1989, for one day on 4-11-1989 and for 14 days on 5-11-1989 at the request of counsel for applicants, who filed adjournment applications. On 19-11-1989 the case was adjourned for 12 days because advocate for applicants was absent. During the pendency of bail application -in the High Court from 2-10-1986 when applicants were taken in custody, to 27-11-1989 when hearing took place in the High Court, total time that was consumed in the trial Court was three years, one month and twenty five days from which period of delay attributable to the applicants as stated above of 7 months and (21 days) 231 days is deducted and still there is delay of 6 months and 4 days which could be put in the account of prosecution.
4. ' I do not feel inclined to give benefit of delay to the applicants for the reason that they have sought too many adjournments for sufficiently long period of 7 months and 21 days (231 days) and further that intention of applicants in this delay which is contributed by them was not bona fide but was for the purpose of protraction of proceedings so that they should claim entitlement to the grant of bail on statutory delay. It also appears from the case diaries that somehow or the other the intention of applicants was that the case should not conclude and as is stated above in the dates of adjournments sought on behalf of applicants that on some dates when the case was ripe for hearing and witnesses were available for examination adjournments were sought to restrict the progress of the trial proceedings. Subsequently certified copy of the case diary of 2-12-1989 from the record of the trial Court shows that on that date all PWs including I.O. Was present and PW 7 Karam Khan was put in the box for the purpose of examination and after oath was administered to the witness both applicants stood up in the dock and declared that they wanted to move transfer application in the High Court and Mr. Muhammad Afzal Soomro Advocate requested that time be given to them to get an application drafted for presentation before the Court. In such circumstances trial Court felt constrained to adjourn the case. Of course accused person has a right to ask for transfer on valid and reasonable grounds but in the instant case it does appear that the intention was that the witnesses should not be examined and that there was no other valid excuse to ask for postponement, request was made for transfer of the case. In these circumstances, I am of the view that intention of applicants was not bona fide and they have made positive in the delay which is for considerable period and that also with mala fide intention, as such they do not deserve grant of bail on the ground of statutory delay. In such circumstances calculation of time of delay attributable to the will not help the applicants. I am supported in this view by the judgments of the Supreme Court of Pakistann in the cases of Muhammad Yakoob alias Koobi v. State reported in PLD 1984 SC 1, Akhtar Abbas v. State reported in PLD 1982 SC 424 and Ashiq Hussain and others v. State reported in 1989 SCM R 392.
5. ' For the facts and reasons stated above I dismiss bail application of the applicants on the ground of statutory delay.