This is an application for bail by Muhammad Akram and 4 others, petitioners in a case under section 302/364/148/149, P.P.C. Registered at P.S. Kunjah, District Gujrat vide F.I.R. No. 126, dated-7- 10-1983.
2. The prosecution case, briefly is that the petitioners and two others variously armed, abducted Zaheer-ud-Din from Qainchi Chowk, Kunjah in order that he be murdered or may be so disposed of as be put in danger for being murdered. They took him to the Dera of Muhammad Aslam co- accused in a bus and from there Zaheer-ud-Din was removed in a bus to Jokalian by the petitioners, Arshad, Gulzar, Muhammad Akbar and Muhammad Aslam, where he was done to death on 8-10-1983.
3. Learned counsel for the petitioners has pressed the bail on the ground of statutory delay in the conclusion of trial, alone. He has not touched the merits of the case. He submitted that Muhammad Arshad son of Wali Muhammad, petitioner No. 2, Muhammad Afzal petitioner No. 3 and Khizar Hayat petitioner No. 4 being neither previous convicts nor any criminal case ever registered or pending against them, their case was at par with that of Muhammad Arshad son of Muhammad Khan who has been allowed bail by the learned Additional Sessions Judge; that in the case on the basis of which the learned Additional Sessions Judge refused bail to Muhammad Akram petitioner No. 1 and Sadaqat petitioner No. 5, they have already been acquitted. Conversely, the learned counsel for the State and Mr. M.D. Tahir, the learned counsel the for the complainant have seriously opposed this application on the ground that the petitioners were desperate and dangerous criminals and that the deceased was done to death in a cruel manner, so much so, his head was chopped of.
4. I have considered the submissions made by the learned counsel for the parties with care. I find that the petitioners are in jail for more than two years and so far not a single witness has been examined; that the delay in the trial of the petitioners has not occasioned by their act or omission or by any other person acting on their behalf; that Arshad son of Muhammad Khan has been released on bail by the learned Additional Sessions Judge on the ground of statutory, delay; that the case of Muhammad Arshad son of Wali Muhammad petitioner No. 1, Muhammad Afzal petitioner No. 3 and Khizar Hayat petitioner No. 4 is at par with his case in the sense that they were neither previous convicts nor were they involved in any criminal case and that Muhammad Akram and Sadaqat petitioners have also been acquitted in the cases on the basis of which the bail was refused to them by the learned Additional Sessions Judge. Mere registration of the cases against them in which they have been acquitted by the Court of competent jurisdiction, may not be sufficient to treat them as hardened, desperate or dangerous criminals.
5. For what has been said above, I am of the view that the petitioners are entitled to be released on bail under proviso (i.e) of subsection (1) of section 497, Cr.P.C. They shall be released on furnishing bail bonds in the sum of Rs.20,000 (twenty thousand) with one surety each in the like amount to the satisfaction of A. C. /Duty Magistrate, Gujrat.