' MUHAMMAD TASNIM, J.---Applicant is booked in Crime No,91 of 2007, under sections 302/34 P.P.C., Police Station Pak Colony, Karachi. Applicant, in the first place, applied for bail before the learned lst-Additional Sessions Judge, Karachi West, who vide his order dated 28-6-2011 had dismissed the bail application filed by the applicant.
2. The facts of prosecution, as set out in the F.I.R., are that on 18-5-2005 at about 0530 hours when complainant was sleeping in his house on hearing hue and cry he woke-up and hurriedly came out of his house where he saw that his neighbour. Murad had caught hold of his cousin Hanif and was beating him with fist blows. It is further stated that in the meanwhile another brother. Of Murad, namely, Muhammad Ibrahim came and took out knife causing injury on the chest of complainant's cousin and attempted to kill him. It is also stated that complainant's cousin sustained injury.
Complainant further stated that during the incident Allah Bux son of Mola Bux hit wooden muddy which resulted in injuries on lip and teeth of complainant's relative, namely, Abid Ali. It is further stated in the F.I.R. That later on. Injured Abdul Majeed was succumbed to his injuries in the hospital.
In the circumstances present F.I.R was lodged.
3. Learned counsel for the applicant has submitted that he presses bail application only on statutory ground claim benefit of newly inserted proviso in section 497, Cr.P.C. By Act No,VIII of 2011 dated 21-4-2011. Learned counsel says that he has tiled diary sheets of the learned trial Court and there is no delay through out from the date of framing of the charge till date on the part of the applicant. He further says that more than four years have, lapsed but trial has not proceeded till date. Learned counsel further says that applicant was arrested on 18-5-2007 and charge against him was framed on 13-5-2008. Learned counsel says that prosecution has examined complainant and two police, official witnesses till 23-11-2009. He further says pet order dated 24-2-2011 this Court had directed the learned trial Court to conclude the trial within three months and to procure the attendance of the prosecution witnesses through coercive measures, but despite of above directions trial of the case has not yet been concluded.. Learned counsel further says that under the newly added proviso it has been stated that a person who being accused of an offence punishable with death, has been detained for such offence for a continuous period exceeding two years he should be enlarged on bail. Learned counsel further submits that applicant is not previously convicted offender for an offence punishable with death or imprisonment for life or he is hardened, desperate or, dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life. He further, says that the case of the applicant/accused falls under the above referred proviso and he may be enlarged on bail on this ground.
4. On the other hand learned A.P.G. Has stated that she will not oppose this bail due to statutory provision. She also submits that diary sheet has been examined by her in Court, but delay is not attributable to the present applicant. Learned A.P.G. Further says that direction was issued by this Court on 24-2-2011 in Criminal Bail Application No,1360 of 2010 to dispose of the case within three months, but neither such direction has been carried out nor any progress has taken place in the matter and she also admits that since 24-1-2011 to 6-7-2011 none of the prosecution witness has appeared for recording of evidence. She further admits that more than four years have passed and the present applicant is behind the bars. It is also admitted by the learned A.P.-G. That applicant is neither previously convicted offender for an offence punishable with death or imprisonment for life nor he is hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life.
5. For the convenience sake newly added proviso in section 497 Cr.P.C. Vide Act No,VIII of 2011, dated 21-4-2011 are quoted hereunder:-- "Provided further that the Court shall, except where it 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 his behalf, direct that any person shall be released on bail---
(a) Who, being accused of any offence not punishable with death, has been detained for such offence for a continuous period exceeding one year or in case of a woman exceeding six months and whose trial for such offence has not concluded; Or
(b) Who, being accused of an offence punishable with death, has been detained for such offence for a continuous period exceeding two years and in case of a woman exceeding one year and whose trial for such offence has not concluded.
' Provided further that the provisions of the foregoing proviso shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life".
6. The examination of the diary-sheet of the learned trial Court shows that delay in trial is not attributable to the applicant. It is also an A admitted fact that despite directions of this Court the trial of the case has not yet been concluded and the applicant is behind the bar for more than four years. It is also noted that case of the applicant falls under the above quoted proviso in section 497, Cr.P.C. And as per prosecution he is not previously convicted offender for an offence punishable with death or imprisonment for life or he is hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life.
7. In this view of the matter, the present applicant is admitted to bail on statutory ground on his furnishing solvent surety in the sum of Rs,5,00,000, (Rupees Five Lacs) and P.R bond in the like amount to the satisfaction of learned trial Court.