' In this case the accused-petitioners, namely, Ishfaq Ahmad and Muhammad Ajmal are under- trial prisoners under section 302/34, P.P.C. And their bail application was rejected by the learned Additional Sessions Judge, Abbottabad on 17-1-1990.
2. I have heard the learned counsel for the petitioners and the learned State counsel and have also perused the record.
3. According to the learned counsel for the petitioners the two petitioners were arrested on 26-4- 1985 and 16-4-1985 and they were tried by the learned Sessions Judge and sentenced to death.
The appeal and the murder reference came before this Court on 19-10-1989 and on legal points the appeal was accepted and the death sentence was not confirmed and the case file was sent to the learned Sessions Judge for trial afresh. After the remand order by this Court the case is pending before the learned trial Court. The petitioners have moved this Court for the grant of bail under the third proviso to subsection (I) of section 497, Cr.P.C. Because they have completed more than five years in Jail and the trial has not been concluded as yet. The learned Sessions Judge has counted the period of two years from the receipt of file on 18-12-1989 after the remand order by this Court and has stated as under:- "Against the said judgment the accused-petitioners preferred an appeal and the Hon'ble High Court vide order dated 29-10-1989 accepted the appeal, set aside the conviction and sentences of the accused-petitioners and remanded the case for trial afresh. The file was received in this Court on 18-12-1989 and as such the period of 2 years has not yet elapsed to entitle the accused- petitioners to bail under the third proviso to subsection (1) of section 497, Cr.P.C. The present application, therefore, does not merit consideration and the same is hereby rejected."
4. The learned counsel for the petitioners relied on PLD 1955 Federal Court page 185 where on page 188 in head note 'C' it has been held that "retrial is not a second but continuation of same trial".
Therefore, in view of the above judgment the period will be counted from 16-4-1985 and 26-4-1985 and not from 18-12-1989 when the file was received by the learned Sessions Judge after remand order by this Court. If we count the statutory period given in proviso third to subsection (1) of section 497, Cr.P.C. From 18-6-1985 and 26-4-1985 then the delay in the case comes from about five years which legally entitles the petitioners to bail. There is nothing on the file to show nor it has been argued before me that the accused-petitioners are desperado or the delay is caused due to their act.
5. The learned counsel for the State Mr. Farukh Pani Barrister does not support the order of the learned Sessions Judge and has accepted the interpretation made by the learned counsel for the petitioners.
6. In the above circumstances the accused petitioners are released on bail provided they furnished bail bonds in the sum of Rs,50,000 with two sureties each in the like amount to the satisfaction of Ilaqa/Duty Magistrate.