' MUHAMMAD ROSHAN ESSANI, J.---The facts leading to present application for bail are that applicant/accused Sain Rakhio son of Allah Rakhio by Caste Zardari is facing trial in Special Case No,37 of 1998 before the learned Special Judge for S.T.A. Naushero Feroze under sections 302, 324, 114, 147, 148 and 149, P.P.C. The case arose out of F.I.R. No,75 of 1998 of Police Station Moro.
2. The brief facts of the prosecution case, disclosed by complainant Ghulam Mustafa son of Muhammad Siddique by caste Kalhoro in the F.I.R., dated 13-8-1998 are reproduced herein below: "Complaint is that, I, have electric shop at Bandhi Road Moro town. My son namely Adam aged about 16 years used to work with me. About one month back, daughter of Allah Rakhio Zardari had left her house, of her own accord, but Allah Rakhio and his Caste fellows suspected that Kamal Ahmed son of Meharuddin Kalhoro was involved in her abduction. Meharuddin had asked Allah Rakhio and his Caste fellows for faisla', but they declined and expressed that they will take revenge from Kalhora community. Today, I, my son Adam and brother Ghulam Fareed were present at the shop. Just opposite my shop, on the other side of the road, there is a cabin of my cousin Unis Kalhoro, who was present on his cabin. I and my brother were sitting in the shop. My son Adam was repairing electric fan under the shed in front of the shop. At about 11-00 a.m., accused namely Suhno son of Murad Zardari armed with Kalashnikove,
2. Sarwar son of Abdul Karim Zardari with pistol,
3. Din Muhammad son of Bhoro Zardari with pistol,
4. Anwar s/o Haji Godho Zardari with Kalashnikove,
5. Sain Rakhio son of Allah Rakhio Zardari with Kilashinkove,
6. Ghulam Qadir alias Wahro son of Mureed Zardari with pistol and one accused whose name is not known to me, but, if seen he could be identified. They were sitting on the rear seats in open double Cabin Datsun of Mula Bux Zardari. Moula Bux son of Dato Zardari was sitting on front seat and his son Sikander was driving the Datsun. They parked Datsun in front of my shop. Moula Bux loudly directed the accused sitting on the rear seats to kill us, as we are Kalhoras by Caste, and relatives of Meharuddin. At his instigation, accused Suhno opened Kalashnikove burst upon Adam, with intent to murder, which hit him on right leg. Accused Sain Rakhio fired from his Kalashnikove upon Adam which hit him on neck. Other accused also tired upon us with intent to kill, but the shots missed. Thereafter, accused with their weapons went away in double cabin Datsun towards eastern side. In the meanwhile Unis came from his cabin and disclosed that he has also witnessed the incident. We saw that Adam succumbed to firearm injuries. Thereafter, leaving the witnesses to guard the dead body, I have come at Police Station, and lodge report that above said accused in furtherance of their common intention, at the instigation of Moula Bux have murdered Adam and tired upon us with intent to kill, due to above said enmity with Meharuddin Kalhoro who is our relative and Caste fellow. 1, pray for action."
3. The applicant/accused applied for grant of bail before the trial Court but the same was declined by impugned order, dated 19-12-2000.
4. We have heard Mr. Sajjad Hussain Kolachi learned counsel on behalf of the applicant/accused.
Mr. Ghulamullah Memon learned counsel on behalf of the Complainant. Mr. Sher Muhammad Shar learned Assistant Advocate-General on behalf of the State.
5. It is contended by the learned counsel for the applicant/accused that the period of two years has elapsed and case has not been concluded and after subtracting, the period of adjournments sought by his client or any other person acting on his behalf, applicant/accused is entitled to bail.
Learned counsel has placed reliance upon the case of Shoukat Ali v. Ghulam Abbas and others t1998 SCM R 228).
6. Learned counsel appearing on behalf of complainant has opposed the bail plea of the applicant/accused and has relied upon the cases of Abdul Rashid v. The State (1998 SCM R 897), lqbal Brohi v. The State (1998 PCr.L.J 2066) and Sher Ali alias Sheri v. The State (1998 SCM R 190).
7. Learned counsel appearing on behalf of the State has adopted the arguments of learned counsel for the Complainant.
8. The perusal of material placed on record shows that inasmuch as on four occasions, the case could not proceed due to the act or omission of the applicant/accused or the person acting on his behalf. It is well-settled that Court for the purpose of grant of bail on the ground of statutory delay cannot add or subtract the period. In this context, apart from the case-law relied upon by the learned counsel for the complainant, we are also fortified by the decision of the apex Court in the case of Muhammad Younis v. The State (1995 SCM R 1087). Thus, the contention of the learned counsel for applicant/accused is misconceived.
9. The decision relied upon by the learned counsel on behalf of the applicant/accused is distinguishable from the facts and circumstances of the present case. It, will be pertinent to mention that the consideration for the grant of bail is altogether different from the cancellation of the bail.
10. The proviso (3) to 497(1), Cr.P.C. Is not an independent proviso but is controlled by proviso (4.) to section 497, Cr.P.C. While considering the bail plea on the ground of statutory delay, Court has to take into consideration the evidence collected by the prosecution, and if case fell within the purview of proviso (4) to section 497(1), Cr.P.C. Court can refuse bail.
11. The record further shows that the reference was made by the Superintendent Central Prison Moro to Home Secretary Sindh for shifting of applicant/accused and co-accused to Central Prison Sukkur as they were causing terror and harassment inside the jail. He further stated in the reference that he was apprehensive that the prisoners may escape away at any time from custody.
12. The facts stated in preceding para. Get support from the facts of the present case. The incident occurred in broad daylight in the heart of Moro town. The applicant/accused alongwith his companions committed murder of deceased Adam in a very callous and brutal manner. The act of the applicant/accused not only tantamounts to "terrorism", but he appears to be a dangerous person.
13. Consequently, we are of the considered view that the applicant/accused is not entitled to the grant of bail. The bail application stands dismissed. l4. The observations made hereinabove are. However, of tentative nature and the trial Court will not be influenced thereby in any manner at the time of final decision of the case and it will be free to arrive at its own findings after evaluating the evidence which is recorded in the case at the stage of trial.