ORDER MUHAMMAD ANWAAR-ULHAQ, J.---Petitioner seeks post arrest bail in case F.I.R. No.384 dated 7-6-2010 under sections 302 and 201/34, P.P.C. Registered at Police Station Saddar Jaranwala District Faisalabad.
2. Prosecution story, as per F.I.R. Is that on 7-6-2010 petitioner and her other co-accused namely Irshad Banu, Taj Muhammad and Shama Bibi had murdered the sister of the complainant Mst.
Kaneez Fatima. The precise allegation against the petitioner is that she during the occurrence was holding the legs of the victim.
3. Learned counsel for the petitioner does not press this petition on merits and only contends that the petitioner was arrested in this case on 10-6-2010 and without any fault on her part, her trial has yet not been concluded whereas newly added 4th proviso of section 497, Cr.P.C. Entitles a woman to be released on bail if her trial has not been concluded within six months.
4. On the other hand, learned Deputy. Prosecutor-General assisted by learned counsel for the complainant contends that evidence of . All the prosecution witnesses has already been concluded and the case is now pending only for the production of relevant reports of chemical examiner and serologist etc. Further contends that the trial is likely to be concluded 'in the near future. He also adds that the prosecution alone is not responsible for delay in the trial, as learned counsel for the petitioner was also not available on various dates of hearing.
5. Arguments heard. Record perused.
6. Admittedly, the petitioner was arrested in this case on 10-6-2010. The 4th proviso of section 497, Cr.P.C. Reads as follows:-- "Provided further that where a woman accused of an offence is refused bail under the foregoing proviso, she shall be released on bail if she has been detained for a continuous period of six months and whose trial for such offence has not been concluded, unless the Court is of the opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on her behalf."
The statutory period of six months mentioned in the proviso mentioned above was expired in this case on 10-12-2010 and an effort was- made even during the pendency of this application for conclusion of trial on the undertaking of learned counsel for the complainant but trial is still pending. Certified copy of the order sheet shows that delay in the trial of the petitioner has not been occasioned on account of an act or omission of the petitioner or any person acting on her behalf. Even if few dates obtained by learned defence counsel are excluded, the fact remains that the petitioner is behind the bars for a period of more than eight months. It was held in the case of "Zahid Hussain Shah v. The State" (PLD 1995 SC 49) that:- "The right of an accused to be enlarged on bail under the 3rd proviso to section 497(1), Cr.P.C. Is a statutory right," which cannot be denied under the discretionary power of the Court to grant bail.
The right of an accused to get bail under the 3rd proviso of section 497(1), Cr.P.C. Is not left to the discretion of the Court but is controlled by that provision. The bail under the 3rd proviso to section 497(1), Cr.P.C. Can be refused to an accused by the Court only on the ground that the delay in the conclusion of the trial had occasioned on account of any act or omission of the accused or any other person acting on his behalf."
Having regard to the well settled legal position referred above, I am of the considered view that the petitioner is entitled to the grant of bail, as a matter of right. The argument of learned counsel for the complainant that trial is almost concluded is misconceived. Here I respectfully refer the case of "Muhammad Siddique v. Muhammad Behram and another 1998 PCr.LJ 358" wherein it has been observed as under:-- "The trial would be deemed to be concluded only when the statements of all the prosecution witnesses have been recorded, the statement of the accused under section 342 and the statements of the defence witnesses, if any, have also been recorded."
In view of all above, I admit the petitioner to bail subject to her furnishing bail bonds in the sum of Rs.2,00,000 (Rupees Two lacs) with two sureties in the like amount to the satisfaction of the learned trial Court.