ASLAM RIAZ HUSSAIN, ACTG. C. J.--Wazir Khan petitioner has applied for Leave to Appeal against the order of the Lahore High Court, dated 9-8-1982, dismissing his bail application.
2. He and his brother Muhammad Khan are accused of offences under section 302/307/34, P. P. C.
For the murder of Gola Khan. The petitioner was arrested on 21-3-1980 and has been in jail for 2 years and 9 months. The trial has not yet commenced because his brother Muhammad Khan co- accused has not been apprehended. The petitioner sought bail before the High Court on the ground of delay under clause (b) of the 3rd Proviso to subsection (1) of section 497, Cr. P. C.
Relevant portion whereof reads as follows :- ---Provided further that the Court shall, except where it is of opinion that the delay .In the trial of the accused has been occasioned by an act or omission of the accused or any other persons acting on his behalf, direct that any person shall be released on bail, who being accused of an offence punishable with death, has been detained for such offence for a continuous period exceeding two years and whose trial for such offence has not concluded."
The learned Judge in Chamber dismissed his bail application with the following observation :- "It is true that the petitioner being accused of an offence punishable with death is in detention since 21-3-1980 and his trial has not yet even commenced but we cannot lose sight of the fact that the delay in trial has been occasioned on account of abscondence and non-appearance of the co-accused, Muhammad Khan, who is the real brother of the petitioner. The act of absconsion and omission to appear before the Court/police on the part of the said Muhammad Khan has occasioned the delay in the trial and such an act or omission on his part is to be deemed to be by a person acting on behalf of the petitioner within the meaning of the 3rd Proviso to section 497(1)
Cr. P. C."
Feeling aggrieved the petitioner has filed the present petition.
We issued notice to the State and have heard both the learned counsel for the petitioner as well as the learned counsel appearing on behalf of the State. The latter informed that Muhammad Khan, co-accused who is a Naik in the Pakistan Army has, indeed not been apprehended and the reason for the inability of the police to arrest him is that the Military authorities have refused to surrender his custody. From this it is obvious that the delay which has occurred in the commencement of the trial is neither attributable to the petitioner nor to any other person "acting on his behalf" and it is not proper that the petitioner should suffer merely because the police is unable to apprehend Muhammad Khan, co-accused. The petition is, therefore, converted into appeal and allowed.
3. The petitioner is released on bail in the sum of Rs. 20,000 (Rupees twenty thousand only), with two sureties, each in the alike amount to the satisfaction of Assistant Commissioner/Duty Magistrate, Mianwali.