Atta Muhammad, petitioner , seeks his release on post arrest bail in case FIR No, 166 of 2016 dated 2.12.2016, registered at police station Sakhi Sarwar Shareef, District Dera Ghazi Khan in respect of offences under Sections 324, 337F (v), 337-F(iii), 34 PPC.
2. The allegation, as culled from the evidentiary material available before the Court as against the petitioner , is that on 2.12.2016 at about 12.00 noon the present petitioner along with his six co-accused, duly named in the FIR, tried to stop the complainant and on his resistance co-accused of the petitioner namely Khalil Ahmed fired with his Kalashnikov hitting the brother of the complainant Hanif Ahmed on his right shoulder whereas the petitioner allegedly fired with his Kalashnikov rifle hitting the complainant Abdul Latif on the left calf. It was further stated in the FIR that on the arrival of the witnesses the accused fled away .
3. Parties heard. Record perused.
4. The petitioner previously applied for bail after arrest on merits, which petition came up for hearing before this Court on 28.11.2017 and was dismissed as withdrawn through an order passed in Crl. Misc. No, 7057-B/ 2017.
Then the petitioner again applied for bail after arrest, which petition was dismissed as not maintainable through an order dated 12.02.2018 passed in Crl. Misc. No, 329-1 B/2018. This is the third application for bail after arrest, moved on fresh ground of non-conclusion of trial even after the elapse of a period of one year .
5. I have heard the learned counsel for the parties and have perused the documen ts appended with this petition. It has been noticed by this Court that the only ground agitated by the learned coun sel for the petitioner before this Court is the delay in conclusion of trial of the petitioner's case. Admittedly , the petitioner was arrested in this case on 19.06.2017 when he was taken into custody by the investigating officer, from the Central Jail Dera Ghazi Khan, after due permission and now more than one year, six month and twenty-one days has elapsed and he is still behind the bars without any fruitful progress in his trial. In the instant case in order to see the reasons of the non- conclusion of trial, a report was also requisitioned from the learned trial Court. The perusal of the report also shows that none of the reason assigned therein, can be attributed to the petitioner or to his counsel. According to this report, the case was adjourned on 2.10.2018 for awaiting of order of permission for jail trial on account of death sentence awarded to co-accused Khalil Ahmed in another case. On the last date of hearing i.e 17.12.2018 the prosecution witnesses were summoned through non bailable warrants of arrest .The learned counsel for the petitioner has produced a copy of report whereby the witnesses of this case are evading arrest in case FIR No, 135 of 2018 dated 27.06.2018 registered at police station Sakhi Sarwar Shareef. The learned Deputy Prosecutor General states that the petitioner is not a previously convicted offender for an offence punishable with death or imprisonment for life. There is no evidentiary material on record to declare the petitioner as a hardened, desperate or dangerous criminal and he is not accused of an act of terrorism punishable with death or imprisonment for life.
6. The Liberty of a citizen has been elevated to the high pedestal by the provis ions of Articles 7 and 9 of the Constitution of 1973, which inter alia provide that no citizen shall be deprived of his Iife and/or liberty , save in accordance with law, nor any accused person shall be detained without lawful authority of the competent Court. To' lave a speedy trial, is the fundamental right of accused being universally acknowledged. It has been held by the Supreme Court of Pakistan in plethora of judgments that if delay in conclusion of trial is Lot occasioned due to the act of accused or any other person acting on his behalf then the accused become entitled the concession of bail as a I natter of right. Reliance in this regard is placed on the case of Zahid Hussain Shah versus The State (PLD 1995 SC 49 ) wherein it has been held as under: "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 (ibid) 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 setting(sic)(acting) on his behalf. The bail under the 3rd proviso ibid can also be refused by the Court if the case of the accused fell under the 4th proviso to section 497(1), Cr.P.C. In all other cases the Court must grant bail."
It was further held in the case of Zahid Hussain Shah (supra ) as under: "The other reason for refusing bail to appellant given by the learned Judge in Cham bers was that the injury caused by the appellant was on the vital part of the body and it was declared grievous by the doctor . This reason was hardly relevant for refusing bail to the appellant under the 3rd proviso to section 497(1), Cr .P.C."
7. The upshot of the above discussion is that since the delay in the conclusion of trial is neither caused nor occasioned by an act or Commission of the petitioner , hence he is entitled to the concession of bail on account of statutory delay . For the foregoing reasons the petition in hand is allowed and petitioner is admitted to post arrest bail subject to his furnishing bail bonds in the sum of Rs,100,000/- (Rupees One hundred thousand Only) with two sureties each in the like amount to the satisfaction of learned trial Court.