1. ' This bail application has been filed for enlarging the applicant on bail who was facing trial in Crime No,96 of 1998 registered' at Police Station Tando Muhammad Khan District Hyderabad for the offence under sections 302, 324 and 34, P.P.C.
2. ' In nutshell, the history of the case is that complainant Shah Nawaz lodged F.I.R. No,96 of 1998 on 8- 7-1998 at 23-30 hours stating that they are five brothers, Shakil Sarfraz aged about 20/21 years is third in number. On 8-7-1998 the complainant and Shakil Sarfraz went to Bismillah Hotel at 21-25 hours where Pir Tariq Hussain All alias Papoo and Rasool Bux alias Karo Kumbhar met them. At the very moment accused Azam son of Sher Ali Khowaja, co-accused Babo son of Ghabo Shidi and Lalo Shidi arrived there and started abusing Shakil Sarfraz stating that he had altercation with Azam in the noon time they would not spare him. The complainant further narrated that Babo and Lalo Shidi grappled with Shakeel Sarfraz while accused Azam tookout pistol from the fold of his shalwar and fired directly at Shakil Sarfraz which hit him who on receiving fire shot fell down and raised cry. He sustained injury over right side of his chest crossed from left side and also hit one Akhtar Hussain Shirazi. Thereafter, the accused persons ran away. The complainant asked the reason of attack from injured Sarfraz who disclosed that on that day in the noon time Azam hit him with motorcycle and altercations took place and because of that such attack had been made. The injured was taken to Taluka Hospital Tando Muhammad Khan where he died.
3. ' After investigation the accused persons were challaned to face trial for the offence mentioned hereinabove. The present applicant moved a bail application before the trial Court but it was rejected vide order dated 10-10-2000, hence this bail application.
4. ' I have heard the learned counsel for the applicant and the State counsel so also perused material placed on record.
5. ' Learned counsel for the applicant has pressed this bail application on the ground of statutory delay in conclusion of trial. He argued That the applicant was arrested on 10-7-1998, and uptill now only two P.Ws. Have been examined. The conclusion of the trial was not in sight and the delay in trial was not occasioned by any act or omission of the applicant/accused or any person acting on his behalf.
6. ' Learned counsel contended that the case was adjourned on as many as 22 occasions on the ground that the accused was not produced by jail authorities, which included 9 adjournments after the framing of charge.
7. ' He further submitted that three adjournments were obtained on behalf of the co-accused which were not attributable to the applicant. In support of above contention learned counsel relied upon the authority reported as 1998 SCM R 228.
8. ' Apart from that as many as four adjournments were sought at the behest of the complainant in between the period when four adjournments were requested by the applicant. Learned counsel also relied upon the authorities reported as 1985 SCM R 1509; PLD 1995 SC 49; 1998 M LD 1551; 1991 PCr.LJ 1879; 1998 PCr.LJ 320; PLD 1997 Kar. 156; 1984 SCM R 613; PLD 1987 Kar. 4 and 1999 PCr.LJ 1235 in order to show that there was no intentional delay on the part of the applicant and that the four adjournments were sought by the applicant on the ground that his learned counsel was elevated to the Bench, and he had to make search for a Senior Counsel of his choice to defend his case.
9. ' Learned counsel for the State, however, strongly opposed the application for grant of bail as according to him the case was adjourned for three times on the request of the co-accused and on four times the adjournments were sought by the applicant on the ground that he has to engage an Advocate of his trust after the elevation of his learned counsel to the Bench. Learned counsel for the State argued that re-counting and calculating the period of adjournments in mathematical manner was not approved by the Hon'ble Supreme Court. He placed reliance on 1995 SCM R 1087; 1998 SCM R 897 and PLD 1996 Kar.
10. 487.
11. ' I have given my anxious consideration to the submissions made by the earned defence counsel as well as the learned counsel for the State and perused the case diaries.
12. ' Admittedly the applicant was arrested on 10-7-1998 and since then he is continuously in custody.
13. From the perusal of the case diary it transpires that after submission of challan the case was adjourned for as many as 35 hearings out of which on 22 hearings accused was not produced by the Jail Authorities. On 2 hearings case could not proceed due to transfer of the Presiding Officer, 3 adjournments were sought on behalf of the co-accused, four adjournments were obtained by the complainant side whereas four adjournments were taken by the applicant.
14. ' The " facts reveal that the case was mostly adjourned on the ground that the custody of the accused was not produced by the Jail Authorities. No doubt the accused obtained four adjournments during the entire period but the reason being genuine that it cannot be termed an act tent amounting to cause intentional delay. Even the murder case could not proceed without the assistance of an Advocate. It was not an easy task for a person accused of a heinous offence involving death penalty to entrust his brief to an Advocate in routine course, unless he finds an appropriate substitute of his previous counsel who having such standing and reputation was chosen for elevation to adorn the Bench.
15. ' The fact that the adjournments during the similar period were sought by the complainant party cannot be easily lost sight of. It appears that the complainant side was also not serious in the expeditious disposal of the case. The adjournment sought by the co-accused can in any manner not be attributable to the applicant.
16. It is settled principle that the two criminal cases are not alike and the bail applications are to be decided keeping in view the peculiar .Circumstances of that very case. The most important criterion is that it is the mind of the Court which is to be satisfied that the case under its consideration is a fit case or not for grant of bail in line wish guidelines covering legal requirements.
17. Reference can be had to case of Sarwar Sultan v. The State PLD 1994 SC 133.
18. ' Hon'ble Supreme Court in the case titled Shoukat Ali v. Ghulam Abbas 1998 SCM R 228 was pleased to refuse leave to appeal to the complainant where the cancellation of by the High Court on statutory grounds was sought wherein three adjournments were sought by the accused. It was further held in this authority that the non-appearance of the co-accused could not be attributed by any stretch of reasoning to the accused, as the same could not be said to have occasioned by any act or omission of the accused or any person acting on their behalf. Almost similar view was taken in the authority reported in Abdullah v. The State 1985 SCM R 1509 further holding that it could not be assured as to when the case would be heard.
19. ' Hon'ble Supreme Court in the similar circumstances was pleased to grant bail in the case reported as Zahid Hussain Shah v. The State PLD 1995 SC 49. The above dictum was followed in the cases reported in 1998 M LD 1551 and 1999 PCr.LJ 1879.
20. ' In case reported in PLD 1997 Kar.
156. His Lordship Rana Bhagwandas, J. (the then Judge of this Court and now the Hon'ble Judge of Supreme Court of Pakistan) granted bail on the ground that the accused were in continuous detention for more than 2-1/2 years, and their trial had yet not concluded, delay in conclusion of trial had not been occasioned by the accused alone but the prosecution and the Court were also equally responsible for the same, the benefit of which must go to the accused.
21. Evidently in the case in hand, the accused is continuously under detention for about 2-1/2 years the conclusion of trial will take further time as according to the learned counsel there are about 18 witnesses out of which so for two have been examined, the delay in conclusion of trial had not been occasioned by the accused alone but the prosecution as well as complainant party and Court are also responsible and in all fairness the benefit of which must be given to the accused.
22. ' In view of the circumstances narrated above, in this particular case, I am inclined to grant bail to the accused. Accordingly the accused is directed to be released on bail on his furnishing surety in the sum of Rs,3,00,000 (three lacs) and P.R. Bond in the like amount to the satisfaction of the trial Court.