1. ' The facts leading to present application for bail are that applicant/ accused Iqbal Brohi is facing trial in Sessions Case No,163 of 1992 before Sessions Judge, Karachi South arising out of F.I.R. No,135 of 1992 dated 30-3-1992 of Police Station Clifton, Karachi under sections 302, 381 read with section 34, P.P.C. The contents of F.I.R. Lodged by Dr. Mazahar Ali Memon are reproduced below:-- "I reside on the above mentioned address and work as Registrar in Civil Hospital. Now-a-days I am on leave for two years and I have my own private Clinic in Gabool Park Lyari. I married in 1978, 'with.Dr. Rifat. From this wedlock I have three daughters. My wife was also employee of the Civil Hospital. She has resigned from there. In the evening she also sits along with me in my clinic. She had a Boutique in Flex Arcade in Clifton, which now has been let out on rent. Myself and my elder daughter observe fasting (Roza). In the night at about 11 O'Clock my wife slept in the master bedroom and I alongwith my daughters slept in other room. In the morning I and my daughter took Sehri and afterwards I again slept. In the morning I woke up at half-past seven I took my both daughters to school. The younger daughter who is not schooling was left with her mother. Today on 30-3-1992 in the morning at about 9 O'Clock I went out of my house driving my car. At that time my wife was sleeping in the room and my four servants Iqbal Driver, Ghulam Muhammad Cook, Shah Nawaz Chowkidar and Ghous Bux page boy were, available in the house. After leaving my house I went to Block 2 Clifton and after that to SITE, Sher Shah and thereafter to Liaqat National Hospital and therefrom via Gymkhana through Clifton Centre at about 1-45 p.m. I reached my house when I found that the gate was locked. I rang bell, but no body opened the door I peeped and saw that my other car was not available. After that I went to Block-2 and from there phoned my house but no body responded. After that I went to take my both daughters from School and after Picking them I returned back at my residence at about 2-30 p.m. The lock was very much there. In the meantime I informed Police.
2. ' My elder daughter climbed over the door and went inside. She came back and informed me that feet of her mother were tied with telephone wire. I brought a technician from Gizri who opened the lock I entered inside the house with Police. In the master bed room my wife was lying dead on the floor. Her both feet were tied with telephone wire and neck with Dopatta. After completing codal formalities police took away the dead body to Hospital. I then checked and found that cash of Rs,90,000 which were lying in the purse of my wife, video camera and other house hold articles and my new Alto Suzuki Car as well as my four servants were missing. I complain that my servants 1.
3. Iqbal,
2. Ghulam Muhammad,
3. Shah Nawaz and 4. Ghous Bux have killed my wife and they have taken cash and other articles and my Car."
4. ' After usual investigation the police arrested accused Shah Nawaz and Ghous Bux and challaned the case. Accused Iqbal could not be apprehended during the course of investigation, He was therefore, shown as absconder in the challan. On 30-3-1993 applicant/accused was arrested by Kot Diji police of District Ithairpur in a case under section 13-D, Arms Ordinance and he was sent up in this case to stand trial.
5. ' Applicant/accused applied for bail before the trial Court but his bail was refused by impugned order dated 20-3-1997.
6. ' Being aggrieved with the impugned order applicant/accused filed bail application in this Court but it was dismissed due to non-prosecution on 1-1-1998. Hence he moved present bail application.
7. ' On 16-2-1998 while this matter was heard it transpired upon perusal of the impugned order that prosecution before the trial Court was being conducted by Special Public" Prosecutor appointed by the Government. In the fitness of things and in the interest of justice notice was issued to him for addressing the Court and a notice was also issued to the complainant.
8. ' Learned counsel for the applicant/accused has contended that applicant/ accused is innocent; that there is no ocular evidence; that there is only evidence of recovery of Movie Camera at his instance which is a weak piece of evidence; that he was arrested on 30-3-1993; that he obtained only adjournments for 137 days and after deducting the said period his stay in Jail would be more than two years; that the case of applicant/accused is covered by proviso (3) to section 497, Cr.P.C.; that the report from Jail authorities in respect of his conduct is satisfactory that he is involved in only two cases i,e, the present case and another case under section 13-D, Arms Ordinance in District Khairpur; that the applicant/accused is not a hardened, desperate or dangerous criminal; that the applicant/accused is therefore entitled to bail. Learned counsel has placed reliance on Zahid Hussain Shah v. The State PLD 1995 SC 49, Moundar v. State PLD 1990 SC 934, Muhammad Inamul Haque v. The State 1997 M LD 2458 Qammar Zaman v. The State 1997 M LD 2991, Jan Muhammad Brohi v. The State 1996 PCr.LJ 863. Learned counsel has further contended that hearing the learned Special Public Prosecutor is not warranted by law and in that context he has relied on AIR 1960 And. Pra. Page 1.
9. ' Mr. Abdul Waheed Katpur, learned Special Prosecutor has placed on record upto date case diaries of trial Court and had contended that delay in the trial of case was occasioned due to the act of the applicant/accused as is evident from the case diaries; that for the purpose of proviso (3) to section 497 (1) mathematical calculation cannot be made; that the deceased was last left alive with applicant/accused and co-accused; that there is extra judicial confession of applicant/accused before P.W. Hassan to whom they had gone in stolen car of the complainant and identification was also held through him; that the stolen camera was recovered at the instance of applicant/accused whereon name of P.W. Sharmeen daughter of deceased is inscribed; that the case is near completion as nine prosecution witnesses have been examined; that the act of the applicant/accused is brutal and he alongwith co-accused not only killed the lady who was their master but they showed no pity on the small daughter of the deceased aged about 16 months whom they confined in another room of the house. He has placed reliance on Habib-ur-Rehman v. The State 1988 PCr.LJ 1470, Maulana Zahid-ur-Reshid v. The State 1991 PCr.LJ 822, Awal Gul v. Zawar Khan and others PLD 1985 SC 402, and unreported bail order of this Court in Criminal Bail Application No,1289 of 1995 of Hassan alias Jinn v. The State. He has further contended that applicant/accused is not entitled to bail.
10. ' Mr. Abdul Halim Sidiki, learned counsel for the State has adopted arguments of Mr. Katpur and has further stated that the act of applicant/accused falls within the purview of Proviso (4) to section 497(1) Cr.P.C. Therefore, he is not entitled to bail.
11. ' I have heard at length Mr. Jafri, learned counsel for the applicant/ accused, Mr. Abdul Waheed Katpur Special Public Prosecutor and Mr. Abdul Haleem Siddiki, learned counsel for the State and also perused the record of case.
12. ' The case diaries of Trial Court reveal that challan was received by the learned Sessions Judge Karachi South on 2-5-1992 wherein applicant/accused and co-accused Ghulam Muhammad were shown as absconders. Trial Court took every step as contemplated under the law to procure their attendance but all went in vain and ultimately on 1-7-1997. Proclamation under section 87, 88 Cr.P.C. Was issued against them and they were declared as proclaimed offenders. During the trial of case, applicant accused Iqbal was arrested by Kot Diji Police of District Khairpur in a case under section 13-D, Arms Ordinance and on 30-3-1993 he was produced before the Trial Court and was remanded to custody. Till the arrest of applicant/accused Trial Court had already examined 7 (seven) prosecution witnesses. Since applicant/accused was arrested therefore trial Court had to proceed de novo. On 15-8-1993 charge was framed against the applicant/accused and on 13-9- 1993, 21-9-1993, 10-11-1993 and 5-12-1993 case could not proceed on account of either applications for adjournment which were moved by applicant/accused or due to the absence of his counsel.
13. Thereafter case was transferred to the Court of Special Judge for Speedy Trial-I, Karachi. Since the delay was being caused due to non-appearance of the counsel for the accused, Trial Court appointed advocate for the pauper accused, so that trial could be concluded. On 17-3-1994 one Mr. Abdul Wahid, Advocate filed power of attorney on behalf of pauper accused and witnesses were in attendance when co-accused applied for adjournment and case was adjourned. In the meantime accused filed Civil Petition No,606 of 1994 in the High Court and got the proceedings stayed. From 24-3-1994 to 13-8-1994 the case could not proceed due to operation of stay. It seems that on abolition of Speedy Trial Courts case was received back by the Sessions Judge, Karachi South on 4-9-1994. On 24-10-1994, 7-11-1994 and 24-11-1994 accused or their counsel applied for adjournment, case could not therefore, proceed. On 12-12-1994 statement of one P.W. Was partly recorded and on 1-2-1995 it was concluded. On 19-2-1995, 22-2-1995 and 13-3-1995 advocate for accused remained absent therefore, case could not proceed. From 27-4-1995 to 10-7-1995 due to the absence of advocate for co-accused case could not proceed. The case diary of Trial Court further reveals that from 3-8-1995 to 11-2-1998 statements of eight witnesses were recorded. During this period on some dates case could not proceed on account of either non-appearance of the learned counsel for the accused, or non-production of custody by Jail authorities or non- availability of presiding officer of Court. This all shows that the delay cannot be exclusively attributed to the prosecution but defence was also privy to delay. In my view for the purpose of proviso (3) to section 497, Cr.P.C. Mathematical calculation cannot be made so as to add or subtract the period. In this context I am fortified by the D.B. Decision of this Court in an unreported case of Hassan alias Jinn v. The State in Criminal Bail Application No,1289 of 1995. Following passage from the said decision is reproduced: "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 adjournments 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 for 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, had 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. 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 re-examine 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."
14. The deceased was lastly left alive in the company of applicant/accused and co-accused. He was a fugitive from law as proclaimed offender. ' In case of Awal Gul v. Zawar Khan and others reported in PLD 1985 SC page 402, Honourable Supreine Court has held as under: "It has also been ignored that in proper cases, even at the trial, abscondence can be treated as a very important piece of evidence (as corroboration of eye-witnesses on showing the conduct of the accused). It has also been unfortunately ignored that this Court has time and again cautioned that such a conduct cannot be ignored under any law or principle. In some recent decisions also this question has been duly highlighted. They are Rais Khan v. The State (2), Hayat Bakhsh and others v. The State (3) and Kh. Azhar Hussain and another v. The State (4). It is now well established law that a fugitive from law and Courts loses some of the normal rights granted by the procedural as also substantive law. It is also a well-established proposition that unexplained noticeable abscondence disentitles a person to the concession of bail notwithstanding the merits of the case .... The principle being that the accused by his conduct thwarts the investigation quo him in which valuable evidence (like recoveries etc.) is simply lost or is made impossible to be collected (by his conduct). He cannot then seek a reward for such a conduct (in becoming fugitive from law)."
15. Prima facie the act of the accused is very callous, horrible and brutal. Deceased was master of the accused and they instead of protecting her from any precedented or unprecedented attack for the sake of monetary gain killed her after tying her feet with a telephone wire for no fault of her, and even no mercy was shown on a sma ll baby aged about 16 months who was separated from her mother and was thrown in another room of the house and it was sheer luck that within few hours the other inmates of the house' reached and took her out, otherwise her survival would have been difficult. In this context I am fortified by the decision in case of Habib-ur-Rehman and others v. The State reported in 1988 PCr.LJ 1470 where under similar circumstances bail was refused.
16. ' For extending the benefit of proviso (3) to section 497 (1) Cr.P.C. Court has to glance over the act of the accused as proviso (4) to section 497(1), Cr.P.C. Is introduced and intended for that purpose and. Courts normally cannot lose sight of this aspect. Proviso (3) to section 497(1), Cr.P.C. Is controlled by proviso (4) to section 497, Cr.P.C.
17. ' In this case the applicant/accused went with stolen car to P.W. Hassan who has testified and identified him. Apart from that stolen movie camera on which name of the daughter of deceased is inscribed was recovered at the instance of applicant/accused.
18. ' The authorities cited at bar by the learned counsel for applicant/accused are of no avail and help to him as the facts and circumstances of the cited cases are altogether different and distinguishable from the facts and circumstances of present case.
19. ' In the case of Zahid Hussain Shah v. State reported in PLD 1995 SC page 49 Honourable Supreme Court granted bail to accused who was facing trial under section 324/34 and 337-F, P.P.C. And no delay in the conclusion of the trial was caused on account of any act or omission of the accused or any person acting on his behalf. In the same authority it was held by the Honourable Supreme Court that if delay is caused by the accused in the conclusion of trial or his case is covered by proviso (4) to section 497, Cr.P.C. Bail can be refused to him. The observations made at page 52 of this report are reproduced below: "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, Cr.P.C."
20. ' In case of Moundar v. State reported in PLD 1990 SC page 934 bail was granted to accused by the Honourable Supreme Court as previous enmity existed between the parties, and the most important P.W. Who was injured in the case had not implicated the accused and no specific role had been assigned except a bare allegation and accused were not previous convicts. However, Honourable Supreme Court while dealing with proviso (4) to section 497, Cr.P.C. Has laid down the following rule at page 941.
21. "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."
22. ' In case of Muhammad Inamul Haque v. The State reported in 1997 M LD 2458 this Court granted bail to the accused on the ground that no adjournments were sought on his behalf.
23. ' In case of Qamar-uz-Zaman and another v. 5:tate reported in 1997 M LD 2991 one of the ground among others for the grant of bail was that delay was occasioned by the restraining order passed by High Court in a matter initiated by the complainant.
24. ' In case of Jan Muhammad Brohi v. The State reported in 1996 PCr.LJ 863 this Court granted bail to the accused as no delay occurred due to his act or omission.
25. ' So far hearing the learned Special Public Prosecutor Mr. Abdul Wahid Katpur who has been appointed by the Governmeat of Sindh to conduct the prosecution of this case is concerned, learned counsel for the applicant/accused was not able to show that what prejudice has been caused to him and under what provision of law this Court is precluded from summoning the Special Prosecutor to assist the Court. However, he has only placed reliance on the case of Thadi Narayana v. The State reported in AIR 1960 Andhra Pradesh Page 1 in support of his contention by reading the placitum. This citation is of no help to him as the facts of the case reveal that accused was charged for an offence under sections 302 and 392, I.P.C. And he was acquitted of these charges but was convicted and sentenced under section 411, P.P.C. Being aggrieved by his conviction and sentence under section 411, he filed a Jail Appeal which came up before a single Judge. Since accused was not represented by any advocate, learned Single Judge without any notice to accused appointed one Mr. Ganga Dhar Rao advocate, as amicus curiae to argue the appeal on behalf of the accused and he set aside the acquittal under sections 302, 392, I.P.C. And remanded the case back to trial Court. The accused filed intra Court appeal and full Bench was constituted. Full Bench while considering other aspects of the case held that since no appeal against the acquittal was preferred and . While exercising suo motu jurisdiction under section 439, Cr.P.C. Before passing any order prejudicial to accused without show-cause notice and not giving him opportunity of hearing and without the consent of accused appointment of advocate on his behalf was not warranted by law. Relevant observations for the sake of convenience at page 6 are reproduced below: "There is nothing on record from which it would appear that the accused or her pleader was called upon to show-cause against the order proposed to be made. The appointment of an amicus curiae to argue the appeal on behalf of the accused does not in our view satisfy the requirements of section 439(2), Cr.P.C. Because had the accused been called upon to defend herself against the proposed order of retrial, she might have engaged a lawyer herself or given instructions when one is appointed by the High Court."
26. ' In this case Special Public Prosecutor was not called to argue the bail on behalf of applicant/accused, but he was called to assist the Court with regard to material etc., available with prosecution and salient features of the case. Therefore, in my view Court can call and ask any Special Prosecutor incharge of the case to assist in aid of justice. In the circumstances this contention of the learned counsel has no force in law.
27. The upshot of the above discussion is that the case of applicant/accused is also covered by proviso (4) to section 497(1), Cr.P.C. Which disentitles the accused to grant of bail even on the ground of statutory delay, with the result bail application stands dismissed.
28. ' Before parting with this matter I would like to make it clear that the observations made hereinabove are of tentative nature and they shall not be considered while finally disposing of the case. The trial Court will be at liberty to reach its own independent finding while adjudicating the case without in any manner being influenced by what-ever is observed in this order.