' Vide F.I.R. No,348, P.S. Haripur,- dated 14-6-1986, Mehmood and Sajid Rashid along their co- accused Rifaqat were charged' for the murder of Zarif Khan deceased by Dagger blows and pistol shots in furtherance of their common intention under section 302/34, P.P.C. Accused petitioners were arrested on 16-6-1986 and ever since they are in Jail as under-trial prisoners. They applied to the trial Court for bail under the third proviso to subsection (1) of section 497, Cr.P.C. Since they were accused of offence punishable with death but have been detained as under-trial prisoners for such offence for a continuous period exceeding two years and their trial has not been concluded. The trial Court refused them the benefit of third proviso to subsection (1) of section 497, Cr.P.C. On grounds that on 23-2-1987 some five P.Ws. Were examined and Abdul Qayum, Waris Khan and Arif Khan P.Ws. Present in Court were not examined on account of the oral request of the learned defence counsel. Thereafter the P.Ws. Had attended the Court a number of times but were not examined on the objection of piecemeal evidence raised by the learned counsel for the defence due to the non-attendance of Riasat P.W. The trial Court condemned the accused petitioners for their request of adjournment on 23-2-1988 when Riasat P.W. Was in attendance who afterwards absented and there had occasioned the delay in the trial of the accused due to his non-attendance.
2. Learned counsel for the accused petitioners contends that the accused are entitled to bail under the third proviso to subsection (1) of section 497, Cr.P. C. As of right since the delay in their trial has not been occasioned by an act or omission on their part or any other person acting on their behalf and that a single adjournment dated 23-2-1987 may be conveniently ascribed to the accused petitioners but that it is always the duty/obligation of the prosecution to cause the attendance of the prosecution witnesses and if it fails in the performance of its duty the adjournments caused as such will be debits account. He further argued that the defence can raise a valid objection to the piecemeal evidence of eye-witnesses which objection has also been rightly upheld by the trial Court and the case was accordingly adjourned and that such adjournments would not be deemed as occasioned by an act or omission of the accused. Learned counsel for the accused petitioners further pointed out that on the relinquishment of the charge by Additional Sessions Judge-1 Haripur, the file was transferred to Additional Sessions Judge-II, Haripur on 11-11-1987 and was retransferred to Additional Sessions Judge-I, Haripur on 16-1-1988 and that now on the relinquishment of the charge by Additional Sessions Judge-I, Haripur once again there has occasioned some three adjournments. However, strange enough it was noticed that during the absence of the Presiding Officer the adjournments were granted and accused remanded to custody under the signatures of the reader of the Court. He contended that the accused petitioners were entitled to bail as of right for added reason that they had been detained in illegal custody during all this period in clear violation of the provisions of section 344, Cr.P.C. Which provides that every order including the order of remand made under the said section by a Court other than a High Court shall be in writing, signed by the Presiding Judge or Magistrate and that the accused petitioners having been remanded to custody under the signatures of the reader of the Court were to be deemed having been kept under illegal detention.
3. On the other hand learned counsel for the complainant referred to 1988 P Cr.L J 1470 (Peshawar) in which accused were denied the benefit of the third proviso to subsection (1) of section-497, Cr.P.
C. Since they were prima facie found having committed murder of the deceased in a brutal and callous manner by tying down his hands and feet, butchering him with Chhuri and severing his head from his body and later on throwing the beheaded dead body of the deceased in a river and they were accordingly held as dangerous criminals. On the strength it was argued that herein too the deceased had sustained 16 incised wounds on different parts of his body and that the - accused petitioners could be very conveniently dubbed as dangerous criminals on this score.
However, the ratio of the said authority cannot be applied in the present case due to the divergent facts and circumstances.
4. Consequently accused petitioners are released on bail under the third proviso to subsection (1) of section 497, Cr.P.C. As well their illegal detention and are accordingly required to furnish bonds in the sum of Rs,30,000 with two sureties each in the like amount to the satisfaction of Illaqa/Duty Magistrate.