' Samunder Gul and Qasim (petitioners) were arrested on 16th June, 1981 pursuant to the report lodged by Muhammad Jan son of Haider Zaman under section 302/307/325024/379/148/149/411, P.
P. C. In Police Station Shinkiari on 12th June, 1981. The prosecution case against the petitioners and their co-accused is that on the day of occurrence by forming an unlawful assembly, armed with deadly weapons they committed rioting and in furtherance of their common object murdered Nawab and attempted at the lives of Hamidullah, Muhammad Jan, Daud, Khushal and Boba, the injured witnesses. The earlier bail application of the petitioners was rejected by the learned Sessions Judge, on 22nd July, 1981 and by the High Court on 22nd August, 1981.
2. The petitioners again submitted an application for bail before the learned Sessions Judge on the sole ground that they were under detention for more than 2 years and, therefore, entitled to the concession of bail as envisaged under clause (b) of the 3rd proviso to section 497 (1), Cr. P. C. The learned Sessions Judge, however, declined their request for bail on the ground that the delay in the conclusion of the trial has not been occasioned due to the fault of the prosecution.
3. The learned counsel for the petitioners contended that the accused were arrested on 16th June, 1981, the challan was put in Court on 6th April, 1982 and various adjournments granted in the case would show that the delay in the conclusion of the trial has not been occasioned by the accused or any other person acting on their behalf. The learned State counsel and the counsel for the complainant, however, urged that before the filing of the challan in Court Fazalur Rehman co- accused had submitted an application for bail on 23rd June, 1981 which was dismissed on 26th June, 1981. Similarly the bail application submitted by the petitioners on 29th July, 1981 was ultimately dismissed by the High Court on 22nd August, 1981. This delay coupled with the fact that on 2nd March, 1983, after the trial had commenced, an adjournment was sought by the learned defence counsel on the ground that piecemeal evidence should not be recorded and the fact that on 24th April, 1983 the trial of the case was adjourned to 14th June, 1983 for the reason that the learned defence counsel was sick and unable to attend the Court would show that the delay was caused at the instance of the accused. It is urged that 'keeping in view of these facts, the petitioners cannot be extended the benefit of the provisions as contained in clause (b) to the 3rd proviso to section 497 (1), Cr. P. C.
4. The time consumed in moving the bail applications by Fazlur Rehman co-accused or by the present petitioners, before the commencement of the trial, would not lead to the inference that the delay in the conclusion of the trial has been occasioned by or on behalf of the accused. Similarly the adjournment sought on 2nd March, 1983 by the learned defence counsel on the ground of his objection to the recording of piecemeal evidence appears to be a legal objection and could not be described as having been resorted to for delaying the trial of the case. Regarding the adjournment granted on 24th April, 1983 on account of the sickness of the learned defence counsel it may be noted that the case was adjourned to 14th June, 1983 thus causing delay of 1 month and 20 days.
But even if this delay of 1 month and 20 days is taken into consideration against the petitioners, it appears that the period of 2 years of their detention stands completed before the conclusion of the trial. From the perusal of the order-sheet it becomes clear that the learned Sessions Judge was correct to observe that the delay has not been occasioned on account of the prosecution but at the same time it can equally be said that the delay has not been occasioned on account of the petitioners or someone acting on their behalf. In the circumstances, the petitioners appear to be entitled to the concession of bail as envisaged under clause (b) of the 3rd proviso to section 497 (1), Cr. P. C.
5. For the aforesaid reasons the petitioners are admitted to bail each in the sum of Rs, 20,000 (rupees twenty thousand) with two sureties C in the like amount to the satisfaction of Paqa/Duty Magistrate.