1. The F.I.R in this case was registered on 4-6-1993 at 04-00 hours at P.S. Predy, Karachi. The informant S.I. Muhammad Shafi stated in the F.I.R that he was posted at P.S Predy and on that night he was present at P.S. As a duty officer and at 3-00 a.m one Anis Ahmed Khan son of Shafique Ahmed Khan came to P.S. And produced a T.T. Pistol alongwith an empty magazine in presence of P.C Muhammad Sharif and P.C. Abdul Khaliq and stated that he has killed his step-brother Shahid Ahmed Khan who resided in Mayfair Centre, Saddar, Karachi, in Flat No. H-18 at 9th floor, firing five bullet shots from T.T. Pistol upon him. He also stated that he had taken revenge of his deceased mother as his mother was killed by the deceased by putting her into fire. The informant further stated in the F.I.R that T.T. Pistol and magazine were secured and such Mashirnama was prepared and thereafter he visited the place of incident which was a locked flat. The lock was opened by key produced by Waseem Ahmed, brother of the deceased in presence of Mashirs Sultan Muhammad and Waseem Ahmed Khan. The dead body of deceased Shahid Ahmed Khan was lying in the dining hall on two chairs having five bullet holes on his chest, right arm and on head.
2. Learned Advocate for applicant has requested for bail on the ground that the applicant was arrested on 4-6-1993 and more than twp years have passed since then and the trial has not concluded. His bail applicant was rejected because the trial Court observed that the accused had obtained adjournments on 21-10-93 and 13-12-1993. He submitted that even if the period of adjournment is excluded even then the applicant has remained in jail for more than two years. The jail authorities have also certified about the conduct of the applicant during confinement and there is only one concocted case under the Arms Ordinance against the applicant. The applicant is not a desperate or dangerous criminal and his case does not fall within 4th proviso to section 497(1), Cr.P.C, only two P.M. Have been examined so far. He has placed reliance on decisions reported in 1995 PCr.LJ page 1005, 1995 SCMR page 1089, 1995 PCr.LJ page 1682, PLD 1995 SC page 49.
3. Learned State Counsel submitted that six witnesses have already been examined. The previous application of applicant was disposed of on 27-6-1995 as not pressed. There was delaying the trial because the police papers were before High Court during the pendency of previous bail application, and therefore the applicant contributed towards delay even on account of adjournments that he obtained.
4. Learned Advocate for complainant stated that the applicant has killed his own brother and his father has all expired. Because of the act of applicant whole family has been disturbed, the very act shows that he is a dangerous criminal. He went to P.S. Himself. It was deliberate murder as their mother had died 12 years back because her clothes caught fire while cooking. There was no contribution of deceased and therefore there was no motive to cause murder. Six witnesses have already been examined. He relied on decisions reported in PLD 1986 Karachi page 437, PLD 1990 SC page 934, 1995 SCMR page 1087. The delay has been caused because of adjournments obtained by the applicant.
5. The F.I.R in this case is dated 4-6-1993 and the accused was arrested on the same date. He has remained in jail for more than two years and it is stated that delay had been caused because ball application was filed by the accused before this Court and the police papers were not available with the trial Court to proceed with the matter. The previous bail application of applicant bearing Criminal Bail No. 828 of 1994 was filed on 19-9-1994 and was disposed of on 27-6-1995 as not pressed. The case diaries shows that accused had obtained adjournments on 21-10-1993 when three P.Ws. Were present and on 13-12-1993 when P.W. Sultan was present. The diary dated 2-4- 1994 shows that P.C. Sultan was present but D.C. Was called absent. On 13-4-1994 accused was produced in custody and P.W. P.C. Muhammad Sharif was present but Defence Counsel Mr.S. Jalil Ahmed Hashmi was called absent. The presiding judge directed the accused to engage another Advocate so that the case may proceed. On 5-5-1994 the Defence Counsel was absent. From 8-6- 1994 to 21-9-1994 the case could not proceed as the presiding officer had gone for Shariah training.
6. The diaries dated 17-11-1994, 27-11-1994, 6-12-1994, 18-12-1994, 5-1-1995, 15-1-1995, 25-1-1995, 6-2- 1995, 16-2-1995, 1-3-1995, 12-3-1995, 27-3-1995, 10-4-1995, 24-4-1995, 7-5-1995, 17-5-1995, 31-5- 1995, and 11-6-1995 shows that the case could not proceed because the police file was with the High Court. So there are four reasons which have contributed to delay in the proceedings of the case. Firstly there were two adjournments applications by Advocate of accused. The reason is that presiding officer had gone for Sharia training. Third reasons is that police papers were not available with the trial Court as ball application filed by applicant was before this Court. The diary also shows that the Defence Counsel remained absent on some dates of hearing and this in fourth reason.
7. These are the reasons for delay. Their Lordships of Supreme Court have been pleased to provide the guideline in decision reported in PLD 1994 SC page 88 wherein their Lordships have ruled that merely because the presiding officer was absent or had taken leave would not mean that the trial would indefinitely be delayed. If any advantage of such delay had to be given, it should be as provided by law and not otherwise. In this case the State Counsel had submitted that six witnesses had already been examined, the benefit of delay cannot be given to the accused because his Advocate had remained absent on some dates of hearing and because of this the presiding officer had to direct the accused to engage another Advocate. The circumstances are such that it can be said that the delay had not been caused by the accused and therefore, he is not entitled to bail on the ground of delay. Bail application of the applicant is, therefore; rejected.