1. ' NASTM HASAN SHAH, J.--This is a petition for leave to appeal against the order dated 23-10-1989 passed by a learned Single Judge of the Lahore High Court refusing to grant bail to the petitioner (Iftikhar Ahmad) who is charged under Section 302, P.P.C.
2. ' The relevant facts are that on 24-1-1987 at about 7.30 a.m. Riaz Ahmad, complainant in the company of his father Sultan Ahmad deceased, Abdur Raman, brother and Muhammad Iqbal were proceeding to the house of their maternal-uncle Muhammad Bashir. They were waylaid by the petitioner Iftikhar Ahmad, his real brother Zulfiqar (still absconding), Muhammad Yaqoob and the son of Iftikhar Ahmad namely Ghulam Mustafa who were respectively armed with .7 MM rifle, stcngun, .12 bore gun and rifle and that at the exhortation of Zulfiqar, the petitioner Iftikhar Ahmad fired at the complainant's father Sultan Ahmad deceased hitting him on the right side of the head.
3. As a consequence whereof Sultan Ahmad succumbed to the injury on the spot. The motive of the alleged occurrence is the previous enmity between the parties.
4. ' The petitioner Iftikhar Ahmad and Muhammad Yaqoob were arrested on 20-2-1987. Both of them applied for bail on the ground that they had been behind the bars for the last two years and were, accordingly, entitled to the concession of hail and secondly that Muhammad Yaqoob was an old man of 70 years to whom no injury was attributed.
5. ' On behalf of the State it was submitted that the challan was submitted against the accused persons on 12-9-1987 but the trial could not proceed because the co-accused Zulfiqar and Ghulam Mustafa had absconded. The latter namely Ghulam Mustafa was arrested only on 15-4-1989 while Zulfiqar was still a fugitive from law.
6. ' The High Court was of the view that the grant of hail on the ground of delay in the progress of the trial was intended to achieve expeditious trial of the case and to discourage delaying tactics and slackness on the part of the . Prosecution. This was not the situation in the present case because the delay was exclusively ascribable to the co-accused who being real brother and son of the petitioner respectively the petitioner was thus indirectly himself responsible for the delay in the progress of the trial. It was also observed that Ghulam Mustafa was arrested after two and a quarter years of the occurrence, while one accused viz. Zulfiqar was still at large. Consequently, the accused could not "reap premium out of the doings of their closely related co-accused without any blameworthiness on the part of the prosecution".
7. ' Nevertheless, the case of Muhammad Yaqoob was considered as requiring further inquiry, since the only role ascribed to him was that of being present at the scene of the occurrence, with a fire- arm, without any overt participation. Therefore, he was allowed bail.
8. ' By this petition, leave is sought against the order refusing bail to Iftikhar Ahmad accused.
9. ' Malik Akhtar Hussain Awan, learned counsel for the petitioner, has argued that the petitioner could not be penalized for the misconduct of the co-accused who was a fugitive from law. The fact was that he was behind the bars for more than two and a half years and Zulfiqar was still absconding and in these circumstances there were hardly any prospects for the trial being held at an early date.
10. ' It is true that no accused can be penalized for the conduct of a co-accused but in this case the learned Judge in the High Court was of the view that the absconding co-accused being closely related to the petitioner their reluctance to surrender before the police appeared to be a part of a design to delay the trial and thereby assist the petitioner in obtaining the concession of bail in this very serious case on the ground of undue delay in the commencement of the trial.
11. We would not like to comment on this aspect of the case except to observe that keeping the petitioner in prison without any prospects of the trial commencing at an early date would indeed be a hardship and prejudicial to his interests. Undoubtedly, the trial is being delayed for want of the arrest of Zulfiqar co-accused. But there is nothing to show that he will be arrested soon, while any further delay in the commencement of the trial cannot be countenanced. We would, therefore, direct that the case of Zulfiqar be separated from that of the case of the accused who have already been arrested and steps be taken to start the trial against them without any further delay.
12. ' This petition, with these observations, stands dismissed.