' SYED HUSSAIN MAZHAR KALEEM, J.---Above titled revision petitions have been filed against the order of Additional District Court of Criminal Jurisdiction, Dudyal dated 8-7-2011, whereby the petitioners were refused bail.
2. Since both the revision petitions arose out of the same judgment, therefore, these shall be disposed of through this common order.
3. Brief facts forming background of the petitioners are that a case under sections 302/34, A.P.C.
And 13/20/65, Arms Ordinance was 'registered at Police Station, Dudyal on the complaint of Azizi wife of Said Muhammad. It was reported that on 22-4-2004 at about 7-30, p.m in the evening the complainant's son Abdul Majeed and grandson Shahid son of Abdul Majeed were coming back to home from their shop in Ratta market. When they arrived near their house, saw Naheem son of Fazal Hussain and Rehan son of Muhammad Zaman present there. Both of them armed with .30.
Bore pistols started firing upon Abdul Majeed and his son Shahid which resulted into their death at the spot. On hearing the sound of firing the complainant, her daughter-in-law Mst.Zatoon Bibi wife of Abdul Majeed and husband rushed towards the place of occurrence. Where they saw the offenders, carrying pistols who fled away from the scene. Motive behind the occurrence was dispute over a piece of land.
4. After registration of the case, the accused petitioners were arrested by the Police. On 4-6-2011 they moved their applications for grant of bail on the ground of statutory delay in conclusion of trial before Additional District Court of Criminal Jurisdiction, Dudyal which were refused through the impugned order, hence these revision petitions.
5. Learned counsel for the petitioners argued that the petitioners were roped in a false case on account of enmity. The trial Court while passing the impugned order failed to appreciate that the petitioners were imprisoned for the last seven years and even after such a long duration of time the prosecution was not able to conclude its evidence. In view of the amendment made in section 497, Cr.P.C. Through Ordinance No,XXIV of 2011 they were entitled to the concession of bail on the ground of more than two years delay in disposal of the case not attributed to the petitioners, therefore, by accepting the revision petitions, the petitioners may be released on bail on the ground of statutory delay in conclusion of the trial.
6. On the other hand, it- was argued that the occurrence took place during broad daylight, the accused petitioners were nominated in promptly lodged F.I.R, they were ascribed specific role of causing firearm injuries at the persons of deceased which resulted into their death. The accused petitioners were hardened, desperate and dangerous criminals and their case was covered by Prohibitory Clause of the amendment made in section 497, Cr.P.C. Through Ordinance No,XXIV of 2011. The delay if any in conclusion of the trial did not occur due to any negligence of the prosecution. The impugned order being correct and in accordance with law warrants no interference, therefore, the revision petitions may be dismissed.
7. I have heard the learned counsel for the parties and gone through the record of the case.
8. To appreciate the proposition the relevant amendment made In section 497, Cr.P.C. Through Ordinance No,XXIV of 2011 is usefully reproduced.
"Provided further that the Court shall, except when 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 in the opinion of the. Court, is a hardened, desperate, dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life."
9. The plain reading of the law shows that a person who being an accused of an offence punishable with death, has been detained for such offence for a continuous period exceeding two years is entitled to the concession of bail, if the case against him has not been concluded within that period.
10. The petitioners were arrested and sent to judicial lock-up, in June 2004. They were behind the bars for the last seven years and even after such a long duration of time, the prosecution failed to conclude its evidence. The petitioners were not responsible for causing delay in completion of trial, thus they were entitled to the concession of bail in light of the amendment mentioned above.
11. So far as the objection with regard to hardened, desperate and dangerous criminals or that of involved in terrorist activities is concerned, while imposing the conditions intention of the legislature was to empower the courts to refuse bail under this extraordinary provisions of law to the offenders previously convicted with death or imprisonment for life and those alleged for committing dacoity, rape, abduction for ransom or involved in such other terrorist activities as their liberty could be a threat to the society. For this purpose manner of occurrence, previous conduct and criminal record of an accused have also to be considered. In the present case, no such position was found.
According to record, the occurrence took place due to dispute over a piece of land. Neither the petitioners were previous convicts nor the offence was committed in a desperate manner, there was no apprehension that their freedom will be a threat to the society, therefore, it could not be held that they were dangerous, desperate or hardened criminals, thus not entitled for the concession of bail.
' In view of the aforesaid, the revision petitions are allowed and the bail is granted. The petitioners shall be released from custody on furnishing bail bonds in sum of Rs,50,00,000 (Fifty lac) each consisting of two sureties and personal bonds in the like amount to the satisfaction of any Magistrate 1st Class, Mirpur/Duyal.