' The facts leading to the present application for bail are that applicant/ accused is facing trial in Sessions Case No,93 of 1996 before learned 1st Additional Sessions Judge, Badin under sections 302, 324, 337-A(i), 147, 148, 149 and 504, P.P.C. Which was arisen out of F.I.R. No,33 of 1996 of Police Station Golarchi, District Badin.
2. The brief facts of the prosecution case, as stated in the F.I.R., lodged by one Allah Julio on 22-6- 1996 at Police Station Golarchi, are as follows:-- "Complaint is that I and my cousin namely Ali Akbar, Anwar, Allah Bux, Soomar and Hasul, all sons of Eidu by caste Pusio cultivate the land of Zamindar Muhammad Nasir Punjabi on Harap. Yesterday.
Evening we all were working on the Harap land when Munir Ahmed Rehan Punjabi and his Hari Vikio Mallah came to their lands and after taking out the dirty water from the land were draining the same in the sim Nali but due to bad drainage system the dirty water was coming in our land we said to them to first prepare the drainage system and then discharge the water on which there was altercation between us and Munir Ahmed and his Hari Vikio became annoyed and after abusing went away. Today, in the morning. I, my cousin Ali Akbar, Anwar. Allah Bux, Soomar and Hasul were working together on our harap land when at about 10-00 a.m. Munir Ahmed son of Nawaz who was armed with a gun, Nawaz son of Lal Khan with Lathi, Shahbaz with hatchet, Aslam with Lathi, Vikio Mallah with Lathi, Julio with Lathi, Ahmed armed with hatchet came out of them Munir Ahmed and Vikio gave Hakals to us and abused and said that yesterday we did not allow them for drainage of the water, today we will see you we again told them that you prepare the drainage system and then discharge the water. On our saying so Munir Ahmed, who was holding his gun in hand fired straightaway with intention to kill Allah Bux which hit him on the head who fell down and some pellets also hit soomar. The other accused Vikio caused Lathi blow to Soomar, Shahbaz caused sharp side hatchet blow with intention to kill Hasul, which hit him on the chest and the remaining accused namely Nawaz, Aslam, Ahmed and Julio caused Lathi and hatchet blows to Ali and Anwar. On cries and noise the persons who were working at the lands namely Amir Ali son of Qalandar, Ahmed son of Pandhi, by caste Pusio came running who intervened and rescued us from the accused who after abusing went away along with the weapon. Thereafter, we saw the injured Allah Bux was lying unconscious due to injuries. Thereafter all the injured persons were brought at Golarchi Hospital when on the way injured Allah Bux aged about 25 years succumbed to the injuries. I have come to lodge the report that abovementioned accused while being annoyed on the discharge of the water with common intention have fought with us in which accused Munir Ahmed while firing from the gun murdered Allah Bux and other accused with common intention to kill have caused sharp side hatchet blow to our persons and injured them. Complaint is lodged, investigation be made and letter be given for treatment."
3. The applicant/accused applied for bail before the Trial Court but the same was declined by impugned order, dated 25-8-1998.
4. I have heard the learned counsel for the applicant/accused and learned counsel for A.-G. For the State, who vehemently opposed the grant of bail to the applicant/accused .
5. At the very outset learned counsel for the applicant/accused stated that he pressed the bail application only on the ground of statutory delay.
' Perusal of the order of the trial Court shows that applicant/accused sought six adjournments i,e, 15-7-1997, 6-8-1997, 8-11-1997, 23-4-1998, 22-6-1998 and 13-8-1998. With the result the case could not proceed though the complainant and witnesses were regularly attending the trial Court. The total adjournment period comes to four months and twenty-eight days and if the said period is excluded from the total period of detention of the applicant/accused in jail there still remained one year and eight months" period: thus, the applicant accused had not completed two years. When attention of the learned counsel for the applicant was invited to this factual aspect of the matter he replied that now the period of two years is over and applicant/accused is entitled to bail.
It is crystal clear that the delay cannot be exclusively attributed to the prosecution but apparently defense was also privy to the delay. The order of trial Court shows that whenever case was ripe for proceeding, the applicant/accused or his counsel applied for adjournment.
' For the purpose of proviso (3) to section 497(1), 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 (Criminal Bail Application No,1289 of 1995).
Following relevant observations made therein are 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) to 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 then 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."
9. 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, 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) of section 497, Cr.P.C.
10. In the case in hand specific allegation of causing the fatal blows to deceased Allah Bakhsh has been ascribed to the applicant/accused. The period calculated by adding or subtracting the intermittent periods cannot be reckoned lot the purpose of proviso (3) to section 497(1), Cr.P.C., therefore, the application for grant of bail merits no consideration and it is dismissed accordingly.