1. NAZIM HUSSAIN SIDDIQUI, J.---The applicant seek cancellation of bail granted to respondent Muhammad Rafique by learner Special Judge, Karachi, West, as per Order dated 20th September, 1997. The facts relevant for decision of this application are as follows: The case of the prosecution, in brief, is that on 10-5-1995 at about 8.00 p.m. Complainant Essa Khan was present at his Hotel, situate at Farid Colony, when one Muhammad Afzal had informed him that his (complainant's) two brothers namely, Jamrod Khan and Ziarat Khan were fired at by respondent Muhammad Rafique and the co-accused near Andheri Colony, within the jurisdiction of Police Station Mominabad, Karachi, West. The complainant immediately reached there and found his said brothers lying injured in a Jeep and had also seen the respondent and co-accused there. He took the injured to Abbasi Shaheed Hospital, where Jamrod Khan succumbed to his injuries, but Ziarat Khan was admitted in the Hospital being unconscious at that time. On completion of investigation, the charge-sheet was submitted against respondent Muhammad Rafique and co-accused before the concerned Court.
2. Learned Trial Judge granted bail to the respondent on the ground of statutory delay, which order has been impugned in this application.
3. It is contended on behalf of the applicant that delay in trial had occasioned by tire act of the respondent and his Advocate, as such, the respondent was not entitled to bail on said ground.
4. Learned counsel referred to the case Diaries, which supported his contention. It appears that, on many dates of hearing, in spite of presence of P.Ws. And the accused the case was adjourned without any justification. On four dates of hearing viz: 27-3-1996, 28-3-1996, 16-5-1996 and 20-S- 1996 the case was adjourned owing to the request of the respondent. According to 3rd proviso of subsection (1) of section 497, Cr.P.C. The accused is entitled to bail on the ground of statutory delay if the delay in trial has not occasioned by his any act or omission. In the instant case, admittedly on the aforesaid dates the case was adjourned either at the request of the respondent/accused or his Advocate. So the delay in trial had occasioned because of the respondent.
5. Mi. Mehmood Qureshi, learned counsel for the respondent submitted that even if the period for which the matter was adjourned at the request of the respondent was excluded, yet, the respondent was entitled to bail on the ground of statutory delay as he was in custody for a continuous period exceeding two years. In support of his contention, he cited National Law Reporter Shaukat A.I v. Ghulam Abbas and others (1998 SCM R 228) and referred to the following observations:-- On perusal of these order, we find that by order dated 8-5-1996, case was adjourned for five days for the accused to file"VAKALATNAMA" and on 10-6-1996 and 26-6-1996, the case was adjourned for 15 days and 24 days respectively owing to the illness of the counsel for the accused. Even if the delay caused on account of these three adjournments was excluded from the total period of detention of the accused-respondents, their case was still covered by the third proviso to section 497, Cr.P.C. Which provides, inter alia, that a person accused of an offence punishable with death shall be released on bail if he has remained behind the bars for a period exceeding two years and his trial has not yet concluded except when the delay has been caused by any act or omission of the accused or of any other person acting on his behalf. "
6. As against above, Mr. Gul Zaman Khan, learned counsel for the applicant referred to the case of Akhtar Abbas v. The State PLD 1982 Supreme Court 424 which is a Full Bench matter, and relied upon the following:-- "(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 finalisation 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. 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 the 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. It is pertinent to point out that in the case of Shaukat A.I the law laid down in the case of Akhtar Abbas by the Full Bench was not brought to the notice of their Lordships, who had decided said D.B.
8. Matter. Ratio of the Full Bench case is that whether in finalisation of the trial delay has been occasioned by any act or omission on the part of the accused, and that it was not the intention of the law 'to calculate the amount of delay' caused by the defence. In the instant case, had the respondent not sought the adjournments the matter finally would have been disposed of much earlier. Relying upon the dictum laid down in the said Full Bench case we hold that the delay in this case had occasioned by the act of the respondent, therefore, he was not entitled to bail on the ground of statutory delay.
9. Accordingly, we allow this application and bail of respondent Muhammad Rafique is cancelled. He is present in Court and is remanded to custody. Learned Trial Court is directed to conclude the trial within four months from receipt of this order and report compliance to the MIT of this Court.
10. On 2nd December, 1997 by short order we had allowed this Application and these are the reasons for the same.