1. ' This bail application has been filed by the three accused on the ground of statutory delay. Their bail application on the same ground was dismissed by the 1st Additional Sessions Judge, Larkana. I have heard Mr. Ahmed Ali Shaikh, Advocate for the applicants/accused and Mr. Yar Muhammad Abbasi, Advocate for the State and have also perused the R&P of the trial Court.
2. ' The relevant facts for the purpose of deciding this bail application and which are not denied by the learned counsel appearing for the State are that the above named three accused are involved in Sessions Case No,400 of 1991 arising out of F.I.R. No,46/1991, dated 19-6-1991 of Police Station Dokri registered under section 302/34, P.P.C. Accused were arrested on 30-6-1991. On 12-111991 charge under section 302, P.P.C. Read with section 34, P.P.C. Was read over to all the accused who pleaded not guilty. P.W.1 namely Ali Nawaz was examined by the trial Court on 30-8-1994, P.W.2 namely Karim Bux was examined on 14-12-1994, P.W.3 Abdul Wahid was also examined on 14-12-1994, P.W.4 namely Dr. Amjad Ali Shah was examined by the trial Court on 27-2-1995 and thereafter no further evidence was recorded. Accused filed their bail application before the trial Court on the ground of statutory delay on 17-1-1995 and the order rejecting bail application was passed on 25-4-1995 by the learned trial Court.
3. ' After the arrest of all the three accused on 30-6-1991 till framing of charge 12-11-1991 there is no fault apparent on the record to show that such delay was occasioned due to the acts of the accused persons, therefore, accused persons are entitled for the delay of these approximately 131 days. For the first time prosecution produced their witnesses on 21-1-1992 when the case was adjourned on the application of accused to 10-2-1992 when the prosecution witnesses did not turn up. After a lapse of nearly five months prosecution witnesses namely Ali Nawaz and Abdul Wahid again appeared on 18-7-1992 when again the case was adjourned on the application of accused to 3-8-1992 when again case was adjourned on the application filed by defense counsel.
4. Thereafter the prosecution witnesses again failed to appear. The Court diaries of the trial Court from 26-10-1992 shows that one of the accused/applicant namely Muhammad Bux son of Peer Bux was transferred from District Jail, Larkana to Central Prison, Sukkur and he was not produced on some eleven dates of hearing. It was for the first time on 4-5-1993 when accused Muhammad Bux was produced from Central Prison, Sukkur, therefore, this delay of nearly seven months cannot be attributed to the accused persons. (For any reference see Mukhtar Ali v. State 1990 PCr.LJ 555). It appears from the R&P of the trial Court that there are several occasions when the case was also adjourned on the request of counsel for the accused as well as on the request of State Counsel and in such circumstances accused cannot be held responsible for such delay when equally the adjournments were sought on the same day by the prosecution as well. It also appears that on several occasions both the counsel for the accused as well as State were present and the prosecution witnesses were also in attendance but the case was not proceeded due to absence of case property. Such delay cannot be attributed to accused when his counsel was there to proceed with the case. On 14-11-1994 two P.Ws. Karim Bux and Abdul Wahid were examined, thereafter, summon was issued for Dr. Amjad Ali Shah who despite of service did not appeared and proceedings under section 174 was initiated against him. On 27-2-1995 Dr. Amjad Ali Shah was examined. Thereafter Investigating Officer was required to be examined but till this date he has not been examined.
5. Till this date all the accused have remained in continuous detention for about 47-1/2 months. Both the learned counsel when confronted with the trial Court diaries and the above observation of this Court conceded that a . Total period of 17 months can be attributed to the accused for causing delay. If this period is excluded from the period of 47 months even then a period of 2-1/2 years remained in field which cannot be attributed to the accused persons. In the circumstances of the case, I am of the considered view that the accused persons have made out a case for bail on grounds of statutory delay. In fact this exercise should have been conducted by the trial Court who has dismissed the bail application without taking pain of going through the Court diaries and without applying judicial mind. The following is the operative part of the order, dated 25-4-1994 passed by the 1st Additional Sessions Judge, Larkana, while dismissing the bail application:-- "Record of the case shows that the accused were arrested on 30-6-1991 and charge was framed on 12-11-1991 and till then the prosecution has examined four witnesses out of six witnesses and fifth witness namely P.W. Ghous Bux has been given up and there remains only Investigating Officer who is to be examined. The record of the case shows that on so many dates of hearing the P.Ws. Were present in Court b*the case was adjourned on the application of defence side, as such delay, if any could not be attributed on the part of prosecution, the case of the accused is therefore, not fully covered by third proviso to subsection (1) of section 497, Cr.P.C."
6. ' Learned counsel for the applicant has relied upon the cases of Muhammad Araf v. The State 1995 PCr.LJ 826, case of Muhammad Azam v. The State 1995 PCr.LJ 864 and the case of Amir v. The State 1991 PCr.LJ 534 to support his contention that when the delay is not caused due to the acts of the accused such accused is entitled for bail. The learned counsel Mr. Yar Muhammad Abbasi appearing for the State has expressed no objection to grant of this bail application. Even learned A.P.P. Namely Mr. Jamil Ahmad Korai, Advocate appearing for the State has conceded for grant of bail to the accused before the trial Court.
7. ' In the case of Shouko alias Shaukat Ali and others v. The State 1984 SCM R 613 it was held by the Supreme Court of Pakistan that due to the act or omission of any one of the co-accused it will not deprive the other co-accused of the benefit of the statutory delay. It was held by this Court in the case of Amir v. The State 1991 PCr.LJ 534 that where the accused was in continuous detention for more than two years and where after the time for which adjournments were sought by accused was excluded and when it was found that still two years' period of delay was in the field and the trial was not concluded, the accused was entitled for bail as of right.
8. ' The trial Court has also called *report from the Superintendent, District Jail, Larkana about the involvement of these accused in other cases. Such report is available on the R&P of the trial Court which is dated 10-4-1995. According to this report the conduct of all the three accused during the period they have remained in District Jail, Larkana was found satisfactory and according to the jail record they are not previous convict. The prosecution has not raised any objection on the question that these accused persons are hardened, desperate, dangerous criminals or involved in any terrorism. Neither there is any material available on record to suggest that these accused are desperate and hardened criminals or involved in terrorism. Honourable Supreme Court of Pakistan in the case of Moundar and others v. The State PLD 1990 SC 934 has defined the term "criminal dangerous, desperate and hardened" and in view of the dictum of Supreme Court as laid down in the case of Moundar, none of the applicants/accused appear to be disqualified by the fourth proviso to section 497, Cr.P.C. Accordingly, I allow this bail application and grant bail to all the three accused persons upon furnishing one surety of Rs,50,000 each with P.R. Bond of the like amount to the satisfaction of the trial Court.