EHSAN-UL-HAQ CHAUHDRY J,~ A case under section 302/148/149 P.P.C, was registered against the petitioner and others with Police Station Venike Tarar District Gujranwala vide F.I.R.No. 113 dated 10.10.1988. The petitioner moved Sessions Court for grant of bail but the same was declined vide order dated15.10.1989. The petitioner haas now moved this Court for grant of bail.
2. A report was sent for from Sessions Judge, Gujranwala, according to which the trail of the case against the petitioner is likely to commence in the last week of January,1991.
3. The learned counsel for the petitioner in support of the petition has argued that the petitioner is old man of about 75/76 years. It is added that some of the co-accused of the petitoner have been declared innocent which shakes the entire prosecution story and in any case the case of the petitioner is of further enquiry.. In the end it is argued that the trial against the petitioner has not commenced inspite of the fact that a period of over two years has elapsed, therefore, the petitioner is entitled to bail in view of provision of section 497 Cr.P.C. The learned counsel in this behalf has referred to the case of Noor Haleem Vs. The State (1988 Pak. Crl. LJ 2284).
4. On the other hand, learned counsel for the State has argued that the petitioner is not aiding and infirm person. Therefore, he is not entitled toconcession of bail. The learned counsel in this behalf has referred to the order of the learned Additional Sessions Judge. It is added that the bare fact that some of the co-accused have been declared innocent by the police is no ground to discard the prosecution evidence because it is only the trial Court which can acquit the accused. The learned counsel, however, candidly concuded that he cannot defend this petition on the ground of delay in the commencement of trial.
5. I have given my anxious consideration to the arguments of both sides, gone through the facts, relevant provision of law and the precedent case. There is no merit in the first two points urged in support of the petition. However, the last argument requires consideration. The admitted position is that occurrence took place on 10.10.1988. The petitioner was arrested immediately thereafter and since then he is in jail. The report received from the learned Sessions Judge, Gujranwala shows that the trial has yet not commenced. The relevant portion of proviso third to section 497. Cr.P.C.X.
Reads as under:- "who being accused of an offence punishable with death has been detained for such offence for a continuous period exceeding two years and whose trial for such offence has not concluded."
6. The admitted position on record is that the prosecution has failed to conclude trial against the petitioner with in two years and that the petitioner is in jail for over two ycars.The casd of the petitioner is not covered by proviso four, therefore, he is entitled to bail on the expiry of statutory period. Reference may be made to the case of Muhammad Saleem Vs. The state (N.L.R.1989 Criminal 517)
7. The result is that the petitioner is admitted to bail pending the dccesion of the case against him subject to his furishing bail bonds in the sum of Rs.1,00,000/- (Rupees one lac only) with two sureties in the like amount to the satisfaction of the trial Court.