1. ' This application for bail is filed by Mr. Abdul Fateh Malik Advocate for applicant Khamiso who is facing trial before the Court of 1st Additional Sessions Judge, Kandhkot for offence under section 302/34, P.P.C. Arising out of Crime No, 75 of 1995 of Police Station Kandhkot.
2. ' The applicant was refused bail on merits by this Court vide order on Criminal Bail Application No,416 of 1995 passed by my brother Abdul Hameed Dogar, J. On 2-11-1995.
3. ' This application has been filed on the ground of statutory delay and the applicant has been refused bail by the trial Court on the said ground for the reason that the accused party had sought two adjournments one on 25-9-1996 and the other on 12-11-1996.
4. ' Apparently there appears no adverse report from the jail authorities or even from the police as the same is not disputed or agitated by the State Counsel even in the lower Court or in this Court. Mr. Sher Muhammed Shar learned A.A.-G has conceded to the grant of bail to the applicant as according to him it is not the applicant Khamiso who sought adjournment on the above said two dates.
5. ' For the purpose of proper appreciation, the case diaries of the above two dates are reproduced as under: "25-9-1996. Accused Khamiso is produced in custody. Other accused are present on bail.
6. Complainant Amanullah only present. D.D.A present. D.A called absent. Accused Paliyo filed adjournment application granted put off to: 12-11-1996. Accused Khamiso is remanded back to custody. Other accused on bail and complainant are directed to attend. Repeat processs against R.P.Ws."
7. "12-11-1996. Accused Khamiso not produced by C.P. Sukkur. Other accused are present on bail. D.D.A present. P.W Amanullah and Rano are present. D.A called absent. Accused Paliyo filed adjournment application. Granted. Put off to 13-11-1996. Those present are directed to attend. Issue P.O for accused Khamiso. Complainant is directed to produce his witness."
8. ' With the assistance of the advocate for the parties I have gone through the case diaries filed by the applicant up to 10-12-1997 and on no date the witnesses except complainant has appeared in the Court. On some dates the complainant has appeared. From the diary dated 15-11-1997 it appears that even the trial Court was yet calling for 164, Cr.P.0 statements of the P.Ws. From the concerned Court which apparently were not received. Admittedly the applicant has not applied for the adjournment on the above said two dates of hearings and adjournment by co-accused can be taken as a ground for refusing concession of bail to the present applicant but since 12-11-1996 except the complainant no other witness has ever attended the Court and 164, Cr.P.0 statements were not made available by the trial Court till 15-11-1997 and as such the case could not conclude within two years.
9. Under these circumstances, I am of the view that delay, if any, in conclusion of the trial is not attributed to the present applicant and, therefore, applicant deserves the concession of bail in view of Ilird proviso of section 497, Cr.P.C. In view of above circumstances, the applicant was granted bail by me by a short order passed on 27-1-1998 and the above are the reasons of the same.