1. Muneer Ahmad petitioner through this pefition is seeking post-arrest bail in case F:I.R. No,314 dated 22-9-1995 under section 302/452/34, P.P.C. registered at Police Station Dera Raheem, District Sahiwal on the statement of one Abdul Haq against the petitioner and his co-accused.
2. 2.Briefly facts of the case are that the petitioner and his co-accused trespassed into the house of complainant and fired at one Muhammad Akram which hit him on his left flank and he succumbed to the injuries while the accused fled away from the place of occurrence. Motive as alleged in the F.I.R. is that there is a dispute regarding land between the parties and civil litigation is pending in the Court of learned Senior Civil Judge, Sahiwal.
3. 3.The petitioner was arrested in this case on 13-12-1995 and after completion of the investigation the challan had been submitted in Court where the prosecution evidence is being recorded.
4. 4.Main ground on which the petitioner seeks bail is that his case falls within the ambit of proviso 3 of section 497, Cr.P.C. as the trial has not been concluded within the stipulated period and for this purpose learned counsel for the petitioner has annexed photo copies of the interim orders recorded in the present case. The break-up of proceedings conducted in the present case on each date of hearing is as follows:-- On 1-8-1996, the challan was submitted and registered in Court. Munir accused in police custody and Rafiq accused on bail were present. On 13-8-1996 none of the P.Ws. was present. On 12-9-1996, 28-9-1996, 6-10-1996 and 26-10-1996 the presiding officer was either on leave or transferred. On 2- 11-1996, the case was withdrawn from that Court and entrusted to another Court. On 13-11-1996 and 23-11-1996, the Court had erroneously ordered for distribution of copies to the accused. On 10-12- 1996, seven prosecution witnesses were present but learned counsel for Muhammad Rafiq accused was absent, and thus, in his absence prosecution witnesses could not be examined. On 6-1-1998 ten prosecution witnesses were present but the Court happened to be on leave. On 27-1-1997 ten witnesses were present but counsel for Muneer accused was not present. On 20-2-1997 again three witnesses were present but the lawyers were on general strike. On 10-3-1997, no proceedings took place as on 9-3-1997 it was a public holiday and the file was placed before the Court on 10-3-1997.
5. On 31-3-1997 three prosecution witnesses were examined and learned defence counsel also applied to the Court for supplying certain other copies. On 12-4-1997 the Court time was over and the case could not be .reached. On 21-4-1997 the presiding officer was on leave. On 2-5-1997, the learned defence counsel had been operated upon and was thus unable to conduct the case. On 23-5-1997 the application moved by the learned defence counsel under section 265-C, Cr.P.C. was heard and decided. On 14-6-1997 again learned counsel for Muneer accused was busy at Okara and did not conduct the case. On 9-7-1997, learned defence counsel were not present. On 26-8- 1997 examination-in-chief of one of the witnesses was recorded and the learned defence counsel was not willing to cross-examine this witness on that day. On 27-8-1997 statement of P.W.4 was completed. On 17-9-1997 the witnesses were present but were not examined. On 6-10-1997 and 17- 10-1997 learned counsel for the accused were not present and thus on both these dates three and two witnesses were present, respectively who could not be examined. On 5-11-1997 the learned presiding officer was on leave and on 28-11-1997 it was a public holiday. On 29-11-1997 the presiding officer was on leave. On 18-12-1997 the D.D.A. gave up one witness while the remaining were summoned. On 13-1-1998 again the learned defence counsel for Muhammad Rafiq accused was absent.
6. 5.The occurrence in the present case took place on 22-9-1995. It is perhaps one case of its kind where the prosecution has very vigilantly, diligently and religiously produced its witnesses on each and every date of hearing. It was either that the learned presiding officer was not available or the learned defence counsel was absent or being a public holiday and for that reason the trial has prolonged, and thus, the delay occasioned cannot be, in any way, attributed to the prosecution or the complainant. Learned counsel for the petitioner has argued that for any act or omission on the part of a co-accused the petitioner cannot suffer. The learned State counsel has rebutted and stated that if there are more than one accused facing trial they are expected to act and strive in unison to achieve a common objective and also to reap all benefits which become due to them by passage of time and for the same they have to show that by their own conduct they have not done any act or omission which debars them from that benefit. Learned counsel was asked as to whether he could justify by any provision of law where the prosecution evidence could be recorded in absence of one of learned counsel for the defence or in absence of the accused himself, to which he has said that according to the book evidence could only be recorded in presence of the accused and their learned counsel, and thus, if one of the counsel for the accused is not present the prosecution evidence could not be recorded on that date and a special procedure had to be completed for recording evidence in absence of the accused which takes quite a while to be completed. The learned State counsel further adds that it is upto the accused to decide whether they want the prosecution evidence to be recorded and if so, then they and their counsel should be present. In case they desire to prolong the case then they can put up these tactics to delay and defeat the recording of prosecution witnesses which has naturally happened in this case and is evident glaringly from the order sheet. If such a conduct is deliberate and planned then the accused cannot reap any benefit thereof. Therefore, it is held that the delay has been occasioned by the conduct of the accused themselves, knowingly and deliberately. Hence, this petition is devoid of force and the same is dismissed. The learned Trial Court is directed to conclude the evidence within the shortest possible time keeping this case on its priority disposal list.