' The petitioners alongwith two others were proceeded against vide F.I.R. No,140/92, dated 19-8-1992 under section 302/34, P.V.C., Police Station Shaidani Sharif.
2. The prosecution story briefly stated in the F.I.R. Lodged by Mumtaz Hussain is that at about 9-00 a.m. On the fateful day and time he and his father Ghulam Qadir went to Khan Bela to make some purchases and as they were going on Liaqatpur Road petitioners alongwith their co-accused armed with deadly weapons came in front of them. Noor Ahmad accused raised Lalkara that Ghulam Qadir should be caught and done to death. Thereupon Gulzar petitioner gave a Bala blow on the head of Ghulam Qadir in consequence of which he fell down. In that fallen state, he was given Soti blows by Asghar. Ghulam Qadir was taken to the hospital in an unconscious condition where he succumbed to the injuries.
3. The learned counsel for the petitioners prays for bail on the following grounds:--
(i) That petitioner No,1 is attributed a single blow on head of Ghulam Qadir deceased whereas Asghar petitioner No,2 is attributed Soti blows to the deceased.
(ii) That two years have elapsed since the registration of the case and the accused-petitioners have become entitled to bail as of right in view of the mandatory provision contained in the third proviso to subsection (1) of section 497, Cr.P.C. The learned counsel has also placed on record certified copies of the order-sheet of the learned trial Court to bring home the point that the accused were not responsible for the delay in trial. In support of the submission, the learned counsel relied on the following judgments:--
(i) Asif Mahmood alias Kukoo and another v. The State PLD 1989 Pesh. 43,
(ii) Abdul Halim v. The State PLD 1986 Pesh. 92,
(iii) Sultan Pervaiz v. The State PLD 1991 Pesh. 174,
(iv) Nazir Hussain v. Ziaul Haq etc. 1983 SCMR 72,
(v) Zahid Hussain Shah v. The State PLD 1995 SC 49.
4. The learned counsel for the complainant as also for the State have opposed the prayer for bail and submitted that the delay in trial was partly attributed to the accused-petitioners and now the trial has already been commenced. Most of the prosecution witnesses have been examined, only four witnesses remain to be examined and the case is fixed for 18-4-1995.
' With a view to find out the factual position a report was called for from the learned trial Court as to the factors which led to the delay in trial.
5. A perusal of the order-sheet and the report submitted by the learned trial Court reveal that on 14-12-1993 when the case came up for hearing before the learned trial Court for the first time none of the accused entered appearance. The case was adjourned to 5-2-1994 (a delay of 1-1/2 months). The said date was declared holiday and the case came up for hearing on 6-2-1994. On this date two accused persons were present while the bailable warrants were issued against the remaining two. The case was adjourned to 6-3-1994 (one month). On 6-3-1994 all the accused were present but their counsel was absent on account of which the case was adjourned to 22-3- 1994 (a delay of 16 days). On this date, statements of the witnesses recorded under section 161, Cr.P.C. Were given to the accused persons and the case was adjourned to 3-5-1994. On 3-5-1994, counsel for the accused was not present and the case had to be adjourned to 14-6-1994 (delay of one month and ten days). On this date, no proceedings could be initiated as the learned counsel for the accused (Mr. Muhammad Asif Khan) had not appeared. The case was, therefore, adjourned to 12-7-1994 (delay of one month). On 12-7-1994, the learned trial Judge was on leave. The case was adjourned to 13-9-1994 on which date the charge was framed and the case was adjourned to 11-10-1994 for recording of prosecution evidence. On 11-10-1994 P.Ws. Muhammad Akmal, Noor Muhammad, Mumtaz Hussain, Muhammad Iqbal and Abdul Majid were present but their statements could not be recorded on account of general strike as also because of the non- availability of the defence counsel. The case was adjourned to 1-11-1994 on which date none of the prosecution witnesses were present and the Presiding Officer was also not available as he stood transferred. On 15-11-1994 P.W. Mumtaz Ahmad and Muhammad Iqbal were present but as they were eye-witnesses their examination at that stage could prejudice the accused, therefore, their statements were not recorded and instead formal witnesses were summoned for 13-12-1994 (a delay of one month). On this date, statements of five prosecution witnesses were recorded and the prosecution gave up three witnesses. Bailable warrants of the remaining prosecution witnesses were issued for 10-1-1995. On 10-1-1995, statements of three witnesses were recorded and P.W.
Mumtaz, Iqbal and Noor Ahmad were summoned for 7-2-1995. On this date, the accused were produced at 12-30 p.m. Which was rather late and, therefore, show-cause notices were issued to the Superintendent Jail to explain as to why the accused were sent so late. On 14-3-1995, Mumtaz Ahmad, Iqbal and Noor Ahmad P.Ws. Were present but their statements could not be recorded as the learned counsel appearing on behalf of accused Bakht Ali and Noor Ahmad was appointed as a Special Judge under the Suppression of Terrorist Activities Act, 1975. The accused requested for adjournment to engage a counsel and the case was adjourned to 4-4-1995 (a delay of one month).
7. I have heard the learned counsel for the parties and have also gone through the precedent case-law relied upon.
8. Having anxiously considered the points which have been mooted before this Court today, I am of the view that the petitioners are not entitled to bail in the peculiar facts and circumstances of this case for following reasons:--
(i) From a perusal of the Court proceedings referred to in para. 5 of this judgment it is apparent that the case was adjourned for seven times on account of either the absence of the petitioner- accused or their learned counsel or on account of an adjournment sought on their behalf or in their interest. Even on the last date of hearing i,e, 13-3-1995, three of the prosecution witnesses could not be examined as the learned counsel appearing on behalf of co-accused Bakht Ali and Noor Ahmad was not present as he had been appointed Special Judge under the Suppression of Terrorist Activities Act, 1975. If the period mentioned in brackets in paras. 4, 5 and 6 is calculated there was a delay of more than seven months on this account.
' In a judgment reported in Iftikhar Ahmad v. The State 1990 SCMR 607, the Honourable Supreme Court did not grant bail despite a delay of 2-1/2 years in trial and the said delay was on account of the absconsion of the co-accused. In that situation, the Court directed separation of a case of absconding accused with a direction to the learned trial Court to proceed with the trial without further delay. In yet another judgment of the august Supreme Court reported in Ashiq Hussain and others v. The State 1989 SCMR 1580, the accused was not granted bail although the said delay was only partly attributed to the accused. It was observed as follows:-- "Criminal Procedure Code (V of 1898)---S.497(1)---Interpretation.
' A plain reading of section 497(1), third proviso, Cr.P.C. Clearly implies that if delay in the trial is occasioned because of any act or omission of the accused, then the Court can decline to allow bail, if a person accused of an offence punishable with death has been detained for such offence for a period exceeding two years and whose trial has not concluded. It is evident that calculation of the time constituting delay caused at the instance of the defence is not the intention of the law in the aforesaid section. What the Courts have to see is as to whether the conclusion of the trial has been delayed, in any manner, by an act or omission on the part of the accused."
' Again in yet another judgment reported in Akhtar Abbas v. The State PLD 1982 SC 424, the accused was not granted bail although the delay was not again entirely because of him but he partly contributed to it.
9. It is not denied that most of the prosecution witnesses have already been examined; only four witnesses remain to be examined and the trial is likely to conclude during the current month.
' It is a settled practice of the Honourable Supreme Court not to grant bail when the case is either fixed for trial or the trial has already commenced.
' In Muhammad Sadik v. The State 1980 SCMR 203, the bail was refused and it was observed:-- "Criminal Procedure Code (V of 1898)--- '----Ss.497 & 498---Bail---Date already fixed and trial to commence shortly---Not fair, held, to go into merits of case in form of a bail application at leave to appeal stage---Case being not fit for grant of special leave to appeal, petition dismissed."
' In Muhammad Ismail v. Muhammad Rafiq and another PLD 1989 SC 585, the Honourable Supreme Court did not agree with the finding of the High Court wherein it had observed that if the petitioner is otherwise entitled to bail, the fixation of the case should not be a ground for refusing it. The Honourable Court, at page 588 of the judgment, observed as follows:-- "It is a well-known practice of the superior Courts of Pakistan that when a murder case is fixed for hearing, ordinarily, the bail applications are not decided on merits and the matter is often left to the discretion of the trial Judge. The observation of the learned Judge in the High Court with regard to prejudice, with respect, it is pointed out, would not be correct; ..."
10. The case-law relied on by the learned counsel for the petitioners is distinguishable. For instance, in Asif Mahmood alias Kukoo and another v. The State PLD 1989 Pesh. 43, bail was granted as there was a delay of more than two years in conclusion of the trial and the same was not attributable to the accused.
' A similar view was taken in Abdul Halim v. The State PLD 1986 Pesh.
92. In the later case, the bail was refused by the learned Additional Sessions Judge because of the previous desperate character of the accused and there was no material on record to show that the delay in trial was occasioned because of him.
' Similarly, in Sultan Pervaiz v. The State PLD 1991 Pesh. 174, although the delay was no attributed to the accused yet he was refused bail on account of the desperate character and the High Court set aside the order and granted bail to the accused as the finding of the learned Additional Sessions Judge qua the desperate character of the accused was not based on any material on record.
' In Nazir Hussain v. Ziaul Haq etc. 1983 SCMR 72, the Honourable Supreme Court had in fact cancelled the bail granted by the High Court on the ground of "apprehended delay" before the expiry of statutory period.
' In Zahid Hussain Shah v. The State PLD 1995 SC 49, there was a delay in trial and the same was held to be not exclusively attributable to the prosecution but on account of the accused. The High Court refused bail while discussing the merits of the case and observed "the petitioner who was placed in column No,2 is alleged to have caused a Chhuri blow on a vital part of the body which was declared grievous". After going through the order-sheet of the learned trial Court, the Honourable Supreme Court held that excepting two adjournments before the learned trial Court, all other dates were for reasons not attributable to the accused and the order refusing bail on merit was not approved by the Court and it was held as follows:-- "The right of an accused to be enlarged on bail under the 3rd proviso to section 497(1), Cr.P.C. Is a statutory right which cannot be denied under the discretionary power of the Court to grant bail.
The right of an accused to get bail under the 3rd proviso of section 497(1), Cr.P.C. Is not left to the discretion of the Court but is controlled by that provision. The bail under the 3rd proviso (ibid) can be refused to an accused by the Court only on the ground that the delay in the conclusion of the trial had occasioned on account of any act or omission of the accused or any other person setting on his behalf. The bail under the 3rd proviso ibid can also be refused by the Court if the case of the accused fell under the 4th proviso to section 497(1), Cr.P.C. In all other cases the Court must grant bail."
' As discussed in paras. 4 to 6, the facts in the instant cases are distinguishable and the dictum laid down by the Honourable Supreme Court would not be applicable.
11. For what has been discussed above, this petition has no merit which is dismissed. However, as the trial is at the final stages, I am inclined to direct the learned trial Court to conclude the same by 15-5-1995. The Deputy Registrar of this Court shall immediately convey this order to the learned trial Court for compliance.