' Applicants alongwith co-accused Rahim son of Karim Bux are facing trial on the charge of murder of deceased Alidino before the Court of learned Additional Sessions Judge, Khairpur.
2. Unfortunate incident took place on or about 5-1-1997 at about 7-30 a.m. In the lands of complainant Abdul Razak. All the accused were nominated in the F.I.R. With specific role of firing from his gun attributed to applicant Abdul Karim. Applicants alongwith co-accused applied for bail before the trial Court on the statutory ground of delay in view of third proviso to section 497, Cr.P.C.
But without any success, hence this application.
3. Learned counsel appearing for the applicants contended that the applicants were arrested on 15-1-1997; that charge was framed against them on 13-9-1997; that charge against accused Rahim was framed on 23-4-1998; that trial has not yet commenced and the applicants are behind the bars for no fault on their part and, therefore, entitled to the concession of bail in view of third proviso to section 497, Cr.P.C. In support of the submission, order sheets of the trial Court have been filed on 25-8-1999 which tend to show that no witness has been examined so far.
4. Learned Addl. A-G. Opposes the grant of bail for the reasons that the applicants were partly responsible for inordinate delay in commencement and conclusion of the trial in that on 13-8-1998, 7-9-1998, 2-10-1998, 11-12-1998, 18-1-1999, 6-3-1999 and 3-4-1999 trial could not take place on account of absence of the counsel as on many hearings, counsel was not engaged deliberately in order to avail of the benefit of statutory delay and on some of the hearings counsel though engaged did not turn up though the witnesses were in attendance on a large number of dates who could not be examined.
5. Mr. Habibullah Shaikh learned counsel for the applicants does not controvert the factum of failure of the trial for want of defence Advocate but he says that on some of the hearings statements under section 164, Cr.P.C. Were not available with the law officer conducting the prosecution and that complainant himself had sought five adjournments in the case. According to him applicants had delayed the trial only for sixty-two days which circumstance by itself would not disentitle them to the concession of bail on the statutory ground of delay. The calculation made by the council is factually incorrect.
6. While learned Addl. A.-G. Has referred to the case reported as Abdul Rashid v. The State (1998 SCM R 897), Mr. Habibullah has referred to Shaukat Ali v. Ghulam Abbas (1998 SCM R 228). It may be pertinent to observe that the case cited by the defence counsel was referred in the subsequent judgment by the Full Bench consisting of three Judges of the apex Court and held to be not relevant.
7. Adverting to the contentions raised, from the perusal of the order sheets it appears that initially trial did not take place for want of co-accused Rahim who remained fugitive from law for quite some time and the amended charge as against the applicants as well as this person could be framed only on 23-4-1998. Thereafter, the case could not proceed for want of Advocate who was not engaged by the accused and on one of the hearings there is an observation by the trial Court that this was an intentional act on the part of the accused to protract trial. In Abdul Rashid's case while acknowledging the right of an accused to be released on bail in view of the third proviso to section 497, Cr.P.C., it was observed that where counsel for accused had obtained seven adjournments on the dates when prosecution witnesses were in attendance, accused were not entitled to avail benefit of third proviso to section 497(1), Cr.P.C. In the circumstances of the case in hand it can hardly be held that the delay in conclusion of the trial is solely on account of the prosecution or that it is not on account of the applicants or on their behalf. By act of not engaging a defence counsel well in time applicants contributed towards the delay in conclusion of the trial, therefore, concession of bail cannot be extended to them. The case cited by Mr. Habibullah Shaikh relates to the prayer for cancellation of bail in which case considerations for exercise of discretion are altogether different from the considerations for grant of bail. Even on facts this case has no application to the facts of the case in hand.
8. For the aforesaid facts and reasons there is no merit in the bail application which is accordingly dismissed. Trial Court shall take steps for expeditious decision of the case on merits.