1. This bail application on behalf of applicant Mushtaque Ali Jakhrani is filed mainly on the ground that accused/applicant was arrested on 3-4-1998 and the trial has not concluded so for without any fault of the accused or anyone else acting on his behalf and that the applicant/accused is not dangerous, desperate or hardened criminal nor involved in any act of terrorism. The facts in brief as disclosed in the F.I.R. Are that on 13-12-1996 at 8-30 a.m. Applicant/accused Mushtaque alongwith co-accused Muzaffar and Mukhtiar murdered Muhammad Yasin and Mst.
2. Nusrat wife of accused Mustaque on the pretext that they were 'Karo and Kari'. Applicant/accused Mushtaque and co-accused Mukhtiar are shown to be armed with guns whereas other accused Muzaffar had a rifle. Applicant is alleged to have made a direct fire upon Yasin near the hand pump where he had come alongwith complainant to take bath. Thereafter all the accused went towards their house where Mst. Nusrat wife of Mushtaq was done to death by accused Mushtaque and Mukhtiar.While she was standing in the courtyard of the house. After commission of the offence the applicant/accused absconded away and he was arrested on 3-4-1998. Bail plea on merits was rejected by the learned trial Court,' where after an application for grant of bail on the ground of delay was filed which too was rejected on 26-3-2001. After about six months of the said rejection order, this bail application has been filed before this Court. Mr. Muhammad Daud Baloch, learned counsel for the applicant has mainly urged that he wants to press this application purely on grounds of statutory delay. In support of his contention he has referred to the case diaries which show that the case has not been concluded so far. While considering the bail plea on the ground of statutory delay, the learned trial Court found that charge was framed on 13-11-1999 and thereafter adjournments were taken by the learned defence counsel on 27-11-1999, on 29-1-2000, and on 27-4-2000 when on all the said dates witnesses were present and went back unexamined. Thus, the applicant was not found entitled for bail on the ground of statutory delay in view of the rule laid down in case of Hassan v. State PLD 1996 Kar. 487 wherein it was held that "even an adjournment of a single day at the instance of accused might have repercussions and reverberations generating for greater period of inaction in the case than merely covered by the adjournment because an adjuournment has implications, subject to the facts of each case of prompting or creating circumstances whereby the prosecution might be pushed off the track for a longer duration of time than covered by the bare period of adjournment". Mr. Muhammad Daud Baloch, learned counsel for the applicant has filed certified true copies of the adjournment applications filed on the above-referred dates. Adjournment was sought on 27-11- 1999 on the ground that all the witnesses were not in attendance, which according to the learned counsel is must in a murder case. I do not find any substance in this contention as there is no such rule or law that all the eye-witnesses must present and examined on the same date. The other adjournment application filed on 29-1-2000 was filed on the ground that the learned counsel was running temperature since last evening. The case diaries show that on that date as well three witnesses namely Abdul Haq, Amir Hamzo, Subho so als o P.C. Ali Hassan were present and went back unexamined. The next adjournment sought on 27-4-2000 was on the ground that the learned counsel was busy before High Court of Sindh, Bench at Sukkur. On that date as well the same three P.Ws. Were present and had to go back unexamined.
3. Indeed personal ground of an advocate being unwell or being busy before some other Court can be considered to be a valid ground for adjournment, but the fact remains that return of the witnesses without being examined constantly from time to time may seriously affect the prosecution because on the next date, possibly, for some or other reasons, witnesses who had in fact appeared may not attend and in such event the accused or his counsel are bound to face entire risk for non-conclusion of the trial. This view finds support from the rule laid down in the case of Abdur Rashid v. State 1998 SCM R 897 which is reproduced as below:-- "Therefore, it is crystal clear that if for any reason accused or his authorised agent which necessarily includes the advocate engaged for defence causes delay, then in such eventuality protection contained in the third proviso cannot be invoked. It may further be noticed that while ascertaining cumulative effect of ultimate delay in disposal of the case, it would not be merely mathematical calculation of excluding such days for which adjournment was obtained by the accused or his counsel. Factually, if the witnesses are in attendance and matter is ripe for recording evidence; but defence does not proceed with the case, it may seriously affect the prosecution because on the next date, possibly, for some or the other reasons, witnesses who had in fact appeared may not attend.
4. Therefore, if effective hearing is got postponed by the accused or his counsel, then they are bound to face entire risk and such period which may be consumed in procuring presence and examination of those witnesses who earlier appeared in the Court when adjournment was sought on behalf of accused would be important factor for considering question of bail merely on statutory ground under third proviso to section 497, Cr.P.C." The learned A.A.-G. Has also opposed to the grant of bail.
5. Following the rule as laid down by the Honourable Supreme Court of Pakistan in the above cited case of Abdur Rashid (supra), I do not find it to be a fit case for exercise of discretion in favour of the applicant/accused and to grant him bail. Resultantly, this bail application is rejected. Efforts be taken to expedite the trial without any unnecessary delay.