The simple facts of the case are that a case under sections 148, 302/307/4361452/149, 379/109, P. P.
C. Was registered at Police Station Dipalpur, as far back as the 15th of October 1968, is respect of an occurrence which had taken place a day earlier resulting in the death of one Goma and injuries to six others. The report was lodged by Ghulam Nabi complainant naming 15 persons as accused of whore 11 are stated to be on bail. Khushi Muhammad petitioner was Granted pardon on the 16 of May 1973.
2. The question for determination, however, is as to whether the provision contained in subsection
(3) of section 337, Cr. P. C. Operates as a complete bar to his enlargement when the case--- which was commenced about four years before, is still pending inquiry. The relevant provision reads as follows:- ---(3) Such person unless he is already on bail, shall be detained in custody until the termination of the trial."
3. The legal position was examined, by me in Muhammad Ramzan v. The State (1971 P Cr. L J 1150).
Having examined considerable case-law I came to the following conclusions: Firstly the prohibition contained in sub-clause (3) of section 337, Cr. P. C. Is not absolute but qualified and conditional.
Secondly the objects of detention of the approver till the termination of a trial also include inter alia the safeguard of his interest. Thirdly the prohibition would come into play only if the trial is either in sight or in progress. If. However, the commencement of the trial has already taken several years and is still not within sight the authorities are agreed that bail could be allowed to an approver on the ground of abuse of the process of the Court under section 561-A, Cr. P. C. Inasmuch as the prohibition contained in subsection (3) of section 337, Cr. P. C. Would not be applicable.th
4. The above observations are attracted with full force to the facts and circumstances of the present case. Accordingly I allow this petition and grant bail to the petitioner on furnishing security in the sum of Rs. 10,000 (ten thousand) with one surety in the like amount to the satisfaction of the Assistant Commissioner, Sahiwal.