' Call for a report from the Sessions Judge about the time when this trial is likely to come up for hearing.
2. Refixed on 28-2-1989.
' Mushtaq Ahmad Shaida for Petitioner. Mian Habib Ahmad Ansari for the State.
' According to the F.I.R. Registered against the present petitioner, it was alleged that Ata Muhammad son of Shahra accused was a close relative of Ata Muhammad son of Shada complainant; that the accused suspected that Sharif deceased who is a brother of Ata complainant had illicit relations with Mst. Noor Mai who is the wife of Ata accused; that at the time of occurrence which was 3-15 a.m., on the night between 5th/6th August, 1987, Ata complainant alongwith his mother Mst. Roshan Mai and other members of the family were sleeping inside the Haveli whereas Sharif deceased was sleeping outside in the street in front of his shop when Ata accused while armed with .12 bore gun came to the house of the complainant and after awakening up the complainant's aforesaid mother asked her about the whereabouts of Sharif deceased on which she informed the accused that Sharif deceased was not at home; that at this stage Ata complainant also woke up and when Ata accused was on his way back, Ata complainant and his mother Mst. Roshan Mai started following him and just as all the three reached the door of the Haveli, they saw Sharif deceased coming towards the house after hearing the voices of the complainant etc. And when Sharif deceased came near them, Ata accused fired at him who fell down and died. This F.I.R. Bears No, 271, dated 6-8-1987 of Police Station Sahuka, District Vehari.
2. The accused-petitioner was arrested on 10-8-1987. His petition for release on bail was dismissed by the learned Sessions Judge on 1-6-1988. Thereafter the petitioner approached this Court through Criminal Miscellaneous No, 1238/B of 1988 which came up before this Court for disposal on 7-12-1988 when this Court was informed by the learned Additional Advocate-General that 20-12- 1988 was the date fixed for the trial and on this ground, this bail application was dismissed with the observation that the petitioner could repeat his application for his release on bail, if the recording of evidence in the trial did not commence on 20-12-1988.
3. The petitioner has now moved this application stating that no evidence was recorded on 20-12- 1988 and that in fact the trial did not even commence till the filing of the present petition.
4. Vide my order, dated 13-2-1989, I had called for a report from the learned Sessions Judge about the stage of the trial. The learned Sessions Judge has reported that the copies of the documents as provided by section 265-C, Cr.P.C. Were delivered to the accused on 27-2-1989 and that the trial had been fixed for evidence on 7-3-1989.
5. About the progress of the case the learned counsel submits that the copies aforesaid had been delivered to the accused after the filing of the present petition and after this Court had asked for a report from the learned Sessions Judge about the progress made in the case. He further submits that the petitioner has been in jail for about 18 months.
6. Pointing out the improbabilities of the prosecution story, the learned counsel submitted that according to the F.r.R. The time chosen by the accused was the dead of the night i,e, 3-15 a.m., 'which was obviously to accomplish his mission unwitnessed. Yet the accused elected to first awaken the mother of the deceased and the complainant before killing the deceased. He further pointed out that as per the F.I.R. Itself, the deceased was asleep outside in the street whereas the other members of the family were sleeping inside the house and yet the accused went into the house first and awakened the mother of the deceased before launching his attack on the deceased perhaps only to enable the entire family of the deceased to witness the occurrence and become the witnesses against him.
7. The learned counsel thus contends that the prosecution case is highly implausible and warrants further enquiry into the guilt of the accused-petitioner who has been involved in this patently unwitnessed occurrence only on account of suspicion and further that all the witnesses named in the F.I.R. Are chance and planted witnesses.
8. The learned counsel adds that one of the two outside the family witnesses named in the F.I.R.
Namely, Qutab has sworn an affidavit that he had not seen the occurrence and further that even Yar Muhammad, another witness named in the F.I.R. Had not witnessed the occurrence.
9. Finally argues that even according to the prosecution itself, the accused-petitioner had allegedly killed the deceased on account of his illicit liaison with the petitioner's wife and on this score also, the accused deserved a lenient treatment.
10. The learned counsel for the State, however, submits that the accused is specifically named in the F.I.R.; that specific eye-witnesses have also been named in the F.I.R. Who are alleged to have witnessed the occurrence; that even if Qutab eye-witness was to be discarded, there still remain the evidence of Muhammad Yar eye-witness besides that of the complainant and his mother. In reply to the ground of delay, the learned counsel for the State has relied on Babu v. The State 1981SCMR 849.
11. I do propose to discuss the merits or the demerits of the submissions made at the bar by either side lest it may influence the final adjudication of the case at trial. Suffice it, however, to say that the cumulative effect of all the submissions made on 'behalf of the petitioner is that he appears to be entitled to his release on bail. Since the petitioner qualifies for the grant of bail on merits.
Therefore, the authority of the Honourable Supreme Court which proceeds on different facts does not stand in his way for the want of this concession.
12. The petitioner is accordingly released on bail in the sum of Rs,25,000 with two sureties each in the like amount to the satisfaction of A.C./Duty Magistrate, Vehari.