1. ' Several persons, including the accused above, are allegedly involved in abduction of one Suhail Ahmed Shamsi as per F.I.R. No,307/91 of P.S. Landhi, Karachi (East) and face trial before the Special Court No,1 (STA), Karachi. Out of that number, accused Allah Warayo, whose case is longer before us, was grated bail by this -Court on 23-8-1994 in Cr. Bail Application No,695 of 1994 on the ground that he was not identified as an accomplice in the case and his case, therefore, was distinguishable. Accused Hasan above, however, was refused bail in Criminal Bail Application No,667 of 1994, per order dated 17-10-1994, on the grounds that he was picked up in the identification parade, identified in Court and had a specific role assigned against him, the indictment being under section 365-A/34, P.P.C. At the same time and through the same order, dated 17-10-1994, accused Shahiq, Rahim and Umer, who are granted bails by the learned trial Judge on 30-5-1994, upon invocation of the ground of statutory delay, were noticed to show cause as to why bails granted to them, as above, should not be recalled. Shahiq and Rahim, according to Mr. Abdul Waheed Katpar, who represents them now, have been released on 18-71994 but Umer still remains in custody, apparently, on account of procedural constants. While such notice stood issued to the referred three accused in Criminal Bail Application No,667 of 1994 accused Hasan, who was refused bail by this Court, reapplied for the same relief through Criminal Bail Application No,1289 of 1995, seeking the benefit of statutory delay and is represented by Mr. Khawaja Naveed Ahmed.
2. ' On 17-12-1995, when Criminal Bail Application No,667 of 1994 Relevant to cancellation, aforesaid, came up before this Court, notice was issued to the Advocate-General, Sindh, to obtain and submit a report whether or not the accused, who were issued notices for cancellation, were or were not hardened, desperate or dangerous criminals, falling within the exception applicable to statutory delays, contemplated by the fourth proviso to subsection (1) of section 497, Cr.P.C, the third and fourth provisos being as under:-- "Provided further that the Court shall, except where it is of opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf direct that any person shall be released on bail--
(a) who being accused of any offence not punishable with death has been detained for such offence for a continuous period exceeding one year and whose trial for such offence has not concluded, or
(b) who, being accused of an offence punishable with death has been detained for such offence for a continuous period exceeding two years and whose trial for such offence has not concluded: ' Provided further that the provisions of the third proviso to this subsection shall not apply to a previously convicted offender or to a person who, in the opinion of the Court is a hardened, desperate or dangerous criminal."
3. ' Mr. Shafi Muhammad Memon, Addl. Advocate-General, Sindh, who appeared before us today on the case being called, informs us that neither the case has been marked to him nor does he know anything about it. We have, therefore, heard the matter virtually without any assistance from the State.
4. Examining the order of the learned trial Judge, dated 30-5-1994, whereby accused Shahiq, Rahim and Umer were admitted to the facility of bail on the ground of statutory delay, we find that the learned Judge has virtually adopted a mathematical method of calculating the pendency of the proceedings while the accused remained in custody and subtracting from it the period involved in the adornments sought from the side of the accused. This, obviously, is not a proper mode of reckoning the period envisaged relevant to statutory delay in the third proviso to subsection (1) of section 497, Cr.P.C. It goes without saying that even an adjournment of a single day, at the instance of the accused, may have repercussions and reverberations, generating far greater period of inaction in the case than merely covered by the adjournment because an adjournment has implications, subject to the facts of each case, of prompting or creating circumstances, whereby the prosecution may be pushed off the track for a longer duration of time than covered by the bare period of adjournment. This aspect, obviously, has to be considered, in the specific facts of the case, at the time of grant of bail on the ground of statutory delay and was not considered. Besides, relevant to the fourth proviso to subsection (1) of section 497, Cr.P.C., before considering a case for grant of bail on the ground of statutory delay, the Court concerned has to see whether the benefit under the third proviso was or was not forfeited, on account of the added condition in such fourth proviso namely, whether the concerned accused was a previously convicted offender or a person who, in the opinion of the Court, was a hardened, desperate or dangerous criminal. Since the learned trial Judge, while admitting the above three accused to bail did not advert to this aspect of the matter as well, the learned Advocate-General, Sindh, as aforesaid, was required to obtain and submit a report, which as seen has not been done.
5. ' In the circumstances of the case, we would recall the order of grant of bail to accused Shahiq, Rahim and Umer, passed by the Special Court on 30-5-1994 and remand the case back to the learned Judge concerned to reexamine the bail application(s) of the accused-applicants in the light of the foregoing and in the current perspective of things which, relevant to this case, regarding accused Umer, who as said still remains detained, may ostensibly now involve a substantially longer period of delay than the minimum statutory requirement. Till, however, the learned trial Judge re-applies himself to the controversy and decides to grant or refuse bail to accused Shahiq, Rahim and Umer or any of them, such accused would remain on interim bail, to be granted by the learned Judge upon their re-appearance or production, as the case may be. Before that eventuality, however, on the basis of the sureties already furnished, Accused Shahiq and Rahim would remain on protective bail granted by this Court.
6. ' As regards accused Hasan, who has re-applied for bail in this Court, through Criminal Bail Application No,1289 of 1995, this time on the ground of statutory delay, such application is dismissed because the plea of statutory delay ought to have been taken, in the first instance, before the trial Court. The applicant, however, would be free to re-apply before the trial Court on the same ground namely, statutory delay or any other ground, as to be found advisable.