' ZIA PERWEZ, J.--- Applicant Sahib Khan facing trial for an offence under sections 224, 225, 225- A/353, 302, 324/34, P.P.C. Registered under F.I.R. No,45 of 1997 of Police Station Eidgah, Karachi seek bail.
2. Brief facts of the prosecution case are that complainant P.C. Fayyaz Khan was present along with other police officials at Surgical Ward No,4 of Civil Hospital, where accused Asghar Shah was under treatment . On 28-4-1997, in the morning at about 5-30 a.m. The accused wished to go to latrine, the complainant and other police officials put hand cough on his hand and brought him to latrine and thereafter was taken to the water-tub to wash his face. Suddenly in the meantime 9/10 unknown armed accused, came there and told to leave the accused. On refusal the accused persons attacked upon them. The accused persons attacked upon them. The police also made firing, however, they succeeded to take the accused Asghar Shah. H.C. Rana Muhammad Ali Constable Faheem Rustam grievously injured and subsequently succumbed, whereas, complainant, P.C. Muhammad Sabir and one person Ashraf received bullet injuries inflicted by the accused persons while escaping from the place of incident.
3. Heard learned counsel and perused the record. Contention of Mr. Ilyas Khan, learned counsel for the applicant is that the applicant has been in custody since last 10 years and at the time of incident 3rd Proviso to section 497(1), Cr.P.C. Was in force for allowing bail on the ground of delay and is attracted to the present case. He further argued that earlier no bail application was moved on the ground of delay, therefore, applicant who has remained in custody since the last 10 years on account of delay which is not attributable to the applicant. In addition learned counsel argued that no witness has deposed against the present applicant. Mere fact that the incident resulted in death of two police officials and gravity of the offence should not be made a ground for depriving the applicant of his liberty for an indefinite period by withholding bail as a punishment. In this regard he has referred to the statement of the witness since recorded under section 161, Cr.P.C.
Learned counsel further referred to the order of Honorable Supreme Court calling for recording of the three witnesses within the specified period of three months, however, same was not complied with.
4. Mr. Haider Shaikh, learned State counsel after perusing the record could not point out any statement under section 161, Cr.P.C. Involving the present applicant or assigning any role whatsoever. He referred to the statement of co-accused made before the police officer in this regard, however on being asked as the significance of the statement learned counsel frankly conceded that the same is not admissible in evidence under the law except under the prescribed conditions set-forth in this context.
5. The applicant has remained in custody for a period of about 10 years. Order dated 9-1-2006 of Honourable Supreme Court for recording of evidence at least three witnesses has not been complied with. That the ground of delay is available as the offence took place on 28-4-1997 when the amendment had not been effected. Although, the provisions did not guarantee for release of bail, however, each case possesses its own merits. In the instant case ample opportunity was granted to the prosecution to ascertain any delay attributable to the applicant/accused and today statement has been made that the delay is not attributable to the present applicant at the same time. It is also that no material connecting the present applicant/accused with the commission of the offence is available except statement of co-accused Asghar Shah before Police Officer.
6. For the foregoing reasons, the bail application is granted on ground of delay. The applicant is admitted to bail subject to furnishing solvent surety in the sum of Rs,5,00,000 and P.R. Bond in the like amount to the satisfaction of the learned trial Court.