' The petitioners, Shah Muhammad , and Nazar Muhammad are seeking post-arrest bail in case F.I.R. No, 152/98, dated 18-4-1998, registered at Police Station, Sadar, Bahawalpur, for the offences under section 302/324/34, P.P.C., at the instance of complainant, Ghulam Mahmood Ali, for an occurrence of the same day at 12-00 noon, in which Muhammad Nadeem, paternal cousin of the complainant got killed due to fire-arm injuries which are attributed to accused, Muhammad Afzal and the complainant was also injured by Muhammad Afzal with his rifle. The allegation against the petitioner, Shah Muhammad is that he brought the co-accused on his tractor to the place of occurrence and he and petitioner, Nazar Muhammad, then raised a 'Lalkara' and asked co- accused Muhammad Afzal to bring rifle from the factory, upon which Muhammad Afzal brought rifle 222 and fired three shots at Nadeem deceased and on the asking of the petitioners he took a shot at the complainant and injured his left shoulder.
2. The petitioners were arrested on 29-4-1998, the investigation was completed and challan was submitted in Court on 13-6-1999. The application of the petitioner, Shah Muhammad, for the grant of post-arrest bail (Criminal Miscellaneous 561-B/98) was dismissed, on merits, by this Court on 29-10-1998 and his second application (Criminal Miscellaneous 416-B/99/BWP) was disposed of as not pressed, by this Court on 27-5-1999. Thereafter the petitioners again applied to the Special Court for Suppression of Terrorist Activities, Bahawalpur Division, Bahawalpur, for the grant of post- arrest bail on the additional ground that in the private complaint of the co-accused, Muhammad Afzal, the complainant party has been summoned as accused persons by the same trial Judge.
The Special Court for Suppression of Terrorist Activities, Bahawalpur, vide its order, dated 2-12-1999, has dismissed their application.
3. We have heard the learned counsel for the petitioners, the State and have also seen the record.
4. It is contended by the learned counsel for the petitioners that the petitioners were arrested on 29-4-1998 and they are entitled to the grant of bail as of right on the expiry of the statutory period of two years as provided in section 497(1)(b) of the Cr.P.C. And the conclusion of the trial is not in sight. It is submitted next that in fact the complainant party is the aggressor party and the co- accused, Muhammad Afzal, has brought a direct complaint before the trial Court under sections 324/392, 148, 149, P.P.C. In respect of the same occurrence in which the complainant of the instant case along with P.Ws. Ashfaq, Yaqub and Yasin have been summoned as accused to face trial and this development makes the present case that of further enquiry and the petitioners are entitled to the grant of bail. Reliance in this regard is placed on Shoaib Mahmood Butt v. Iftikhar-ul-Haq and 3 others 1996 SCM R 1845, wherein it has been held that where it is a case of two counter-versions, arising out of the same incident, one given by the complainant in F.I.R. And the other given by the accused party then it is a matter of further enquiry for the purposes of grant of bail as contemplated in section 497(2), Cr.P.C. Reliance has also been placed on Zahid HtIssain Shah v.
The State PLD 1995 SC 49.
5. The contentions have been opposed by the learned counsel for the State and it has been submitted that the trial has commenced and the delay in conclusion of the trial is attributed to the petitioners otherwise the trial would have concluded by now.
6. The challan was submitted in the instant case before the trial Court on 13-6-1999 and the charge was framed on 9-7-1999 and at the commencement of the trial, the statement of the complainant was recorded by the trial Court on 3-8-1999 and the perusal of the copy of the order-sheet of the trial Court furnished by the petitioners shows that at least on eight (8) dates of hearing the trial was adjourned due to the absence of the defence counsel.' The complainant has been bringing witnesses on each date of hearing and it is the accused that were responsible for delay in the conclusion of the trial as they have been seeking adjournments for one reason or the other.
Learned counsel for the petitioners has tried to argue that out of total 39 hearings conducted by the trial Court the adjournment was sought from the petitioners-accused side on only eight (8) of those hearings, has also no force. The calculation in such-like matters are not to be made mathematically and the right of the accused to be released on bail under 3rd proviso to subsection (1) of section 497, Cr.P.C. Is forfeited if the delay in trial is attributable to the accused. In Sher Ali alias Sheri v. The State 1998 SCM R 190, the Hon'ble Supreme Court has held as follows: "10. The above case-law indicates that under the third proviso to subsection (1) of section 497, Cr.P.C. An accused is entitled to bail as a matter of right if the statutory period mentioned either in clause (a) or clause (b) has expired and the trial has not been concluded in view of the use of the word 'shall'. This right can be defeated only if the State or a complainant shows that the delay in trial is attributable to the accused person concerned. Once it is shown the above right is forfeited.
Reference may be made to the case of Akhtar Abbas v. The State PLD 1982 SC 424, in which this Court while declining a petition for leave against the refusal of bail observed as under as to the effect of delay caused by an accused in the finalization of the trial:--- '4. We regret we are not impressed by these submissions, as we find that the requirements of the law is not fulfilled in this case, as at least on eight occasions adjournments were sought by the defence for one reason or the other. In such a case it does not appear to be the intention of the law to calculate the amount of delay caused by the defence. All that is necessary is to see whether the finalization of the trial has, in any manner, been delayed by an act or omission on that part of the accused. In the present case, the delay is partly attributable to the accused. The submission that the date in question was not fixed for the hearing of the case is not correct. On the contrary, it is clear from order-sheet of the trial Court on these dates most of the witnesses were summoned and were present, but their examination had to be postponed owing to the request made by the defence counsel."
7. The abovementioned shows that it is not the intention of the law to calculate the delay caused by the defence. All that is necessary is to see whether finalization of the trial has, in any manner, been delayed by an act or omission on the part of the accused. In the present case, the delay is partly attributable to the accused. As mentioned above, the hearing of the trial was postponed not less than eight times on the asking of the accused-side and for eight times the prosecution witnesses could not be examined. We are of the view that if the accused side had not been asking for adjournments from time to time, the trial would have been concluded long ago. The right of the petitioners to be released on bail under 3rd proviso to subsection (1) of section 497, Cr.P.C., therefore, stands forfeited.
8. We are also of the view that since the trial has commenced and the statement of the complainant has already been recorded, therefore, releasing the petitioners on bail at this stage merely on the ground that the complainant side has been summoned as an accused by the same trial Judge in the counter-version private complaint of the co-accused, Muhammad Afzal, will most likely prejudice the case of the complainant. We are, therefore, not inclined to grant bail to the petitioner at this stage on this ground as well and the direction to the trial Court, in our opinion, to conclude the trial within three months will meet the ends of justice.
9. In view of the above mentioned, this petition is dismissed with a direction to the trial Court to conclude the trial within three months.