' The petitioner and four others were proceeded against vide F.I.R. No,72/92 under section 302/324/109/34, P.P.C. Police Station Shaidani, Tehsil Liaqatpur, District Rahim Yar Khan.
2. The prosecution story briefly stated in the F.I.R. Is that on 22-5-1995 at about 7-30 a.m., the petitioner armed with .12 bore gun and his co-accused variously armed with fire-arms trespassed into the complainant's land. The petitioner fired at Yar Muhammad, father of the complainant, who fell down. Master Ghulam Sarwar fired at Zarif and Eisa co-accused also fired at him. Nazim petitioner again fired at Hayat injured. Muhammad Yar succumbed to the injuries at the spot.
' The motive alleged in the F.I.R. Is that the complainant party had taker land on lease and they were in possession of the said land. The question of possession was sub jaundice before a Civil Court between the accused party and the complainant party and a commission appointed by the Civil Court was to visit the site on the said day for necessary report. It was alleged that the accused party with a view to show their possession before the commission attempted to take forcible possession of the said land.
3. The learned counsel for the petitioner seeks bail on the ground of delay alone. He submits that the petitioner is behind the bar since 27-5-1992 and more than three years and five months have elapsed but the trial has not been concluded as yet.
' The learned trial Court vide its report dated 9-4-1995 has reported that the challah in this case was received in the Court of Session on 9-7-1992. Supplementary challah was submitted on 323- 1993 and report of the Forensic Science Laboratory was attached. Thereafter, the judicial file was summoned by this Court in connection with bail petition of co-accused and the file was received back by the learned trial Court on 25-1-1994. The complainant moved an application for summoning Muhammad Iqbal accused who had been placed in Column No,2. The learned trial Court summoned him. He did not appear and his warrants of arrest were issued which could not be served and ultimately on the statement of the process-server recorded on 17-1-1995, the case of the co-accused was separated under section 512, Cr.P.C. The statements under section 161, Cr.P.C.
Were distributed to the accused, persons on the said date. The case was adjourned to 24-1-1995 but the charge could not be framed as the Court time was over. On 8-3-1995 the charge was framed and the evidence was summoned for 28-3-1995 on which date the Presiding Officer was on leave and the case was adjourned to 2-5-1995 on which date Mr. Ejaz Ahmad Hashmi, Advocate filed his Vakalitnama on behalf of the accused and the case had to be. Adjourned as no P.W. Was present. The case was adjourned to 30-5-1995. Again on this date no P.W. Was present. On 13-6- 1995 two P.Ws. Were present but their statements could not be recorded as the Deputy District Attorney was on leave. On the adjourned date i,e, 27-6-1995 case could not proceed as the learned defence counsel was indisposed and the case was adjourned to 13-7-1995 on which date the accused engaged another counsel and the case was adjourned to 24-7-1995. On this date, two P.Ws. Were present but their statements could not be recorded as learned counsel for the parties were busy before the High Court. The case was adjourned to 9-8-1995 on the request of the parties and on this date the P.Ws. Were present but their statements could not be recorded as the complainant's counsel and the D.D.A. Were not present. The case was adjourned to 3-10-1995.
4. The break-up of the adjournments granted by the learned trial Court shows that the delay in trial was not entirely attributable to the accused party.
' It is not denied that the commission so appointed by the learned Civil Court was to visit the spot to report about the factum of possession qua which both the parties had conflicting claims before it.
The prosecution case is that with a view to show their possession, the accused party attempted to irrigate a portion of the land and when the complainant party asked them to desist from taking forcible possession, they resorted to firing. Fatal shot received by Yar Muhammad (deceased) is attributed to the' petitioner and as per the F.I.R. He also fired two more shots which hit Hayat Muhammad injured.
' Under sub-para. (b) of third proviso to section 497(1) an accused is entitled to bail if-- "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 be concluded."
' However, the afore-referred proviso is not applicable "to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal".
' The question as to who is a desperate person within the meaning of the afore-referred provision came up for consideration before the Honourable Supreme Court in Moundar and others v. The State PLD 1990 SC 934 (941) and the Court held as under:-- "The provision under consideration here is a proviso to the same subsection, and, therefore, it will be reasonable to construe it in the same manner authorizing a Court to take into consideration the evidence collected by the prosecution for purposes of determining whether the accused is a criminal of the categories prescribed therein. Of course the Court can take into consideration and indeed in most of the cases it will take into consideration other materials produced by the prosecution in order to show that the case falls within the prohibitions contained in the 4th proviso."
5. Analysing the role attributed to the petitioner in the light of the criterion laid down by the august Supreme Court referred above, the petitioner along with others armed with. a gun prima facie thwarted the process of the Court by attempting to take forcible possession of the land in question with a view to show their possession before the commission appointed by the Civil Court who was to visit the spot that day and in doing so he not only fired a fatal shot at the deceased but also fired at Muhammad Hayat injured. This conduct of the petitioner would prima facie make him a desperate person to bring his case within the ambit of fourth proviso to section 497, Cr.P.C. That being so, he is not entitled to be released on bail. The petition is, therefore, dismissed.