Petitioner, an accused in a case under sections 302/307/ 324/109/148/149, P.P.C. Registered at Police Station Kotwali, Jhang Saddar, vide F.I.R. No. 332, dated 28-8-1987, has moved this petition for post-arrest bail.
2. Facts briefly stated are that the aforementioned case was registered against the petitioner and 11 others. All of them allegedly belonged to a religious organization known as `Sipah-e-Sahaba'.
Prosecution case relevant for the purpose of this petition is that on 28-8-1987, Maulana Haq Nawaz, a co---accused of the petitioner, made an announcement on the loudspeaker calling upon the members of `Sipah-e-Sahaba' to immediately reach the mosque with their arms so that the persons celebrating `Fateh Mobin' might be taught a lesson. On this announcement, Yasin and Ishfaq, both armed with Klashnikovs fired from the rooftop of the house of Sheikh Muhammad Salim which hit no one. In the meanwhile, Muhammad Ali complainant alongwith Fateh Muhammad, Muhammad Iqbal, Muhammad Amir and Ghulam Muhammad came out of Jamia Masjid Purani Eidgah when the present petitioner accompanied by Yousaf Mujahid and Hakim Ali, all armed with guns, and Murtaza, armed with a knife, came there. Yousaf Mujahid raised a `Lalkara' whereupon Hakim Ali fired two shots which hit Muhammad Amir who fell down. Petitioner then fired at Fateh Muhammad who was hit on the head and he, too, fell on the ground. Both the injured died as a result of the fire- arm injuries. Muhammad Iqbal and Ghulam Muhammad P.Ws. Were allegedly injured by Murtaza with his knife.
3. Petitioner is stated to have been arrested on 19-9-1987. He moved the learned Sessions Judge for the grant of bail but his application was dismissed by the learned Additional Sessions Judge, Jhang on 1-7-1989. Hence this application.
4. I have heard the learned counsel for the petitioner. He has pressed this application on the statutory ground of delay in the finalization of the trial by invoking the 3rd proviso to subsection (1) of section 497, Cr.P.C. Which in its relevant aspect provides that a person accused of an offence punishable with death shall be released on bail if he has been detained for such offence for a continuous period exceeding two years and his trial for such offence has not concluded and that the delay in the trial has not been caused by any act or omission on his part. It is submitted by the learned counsel that the petitioner -was arrested on 19-9-1987 and since then he is in continuous detention but the trial of the case has not as yet concluded for no fault of his. Learned counsel appearing for the complainant and the State have not controverted this submission. In fact, while dealing with the bail petition of Hakim Ali (Criminal Miscellaneous No.79/B of 1990 (Multan), a co- accused of the petitioner, I had held that the petitioner therein alongwith other accused was responsible only for one adjournment on account of which the trial was delayed just for three days.
Case of the petitioner appears to be covered by the beneficial provision enacted in third proviso to section 497(1), Cr.P.C. It may pertinently be observed that when this bail application came up before me on 5-5-1990, I asked the Deputy Registrar of this Court to check up the latest position of the case from the trial Court. He submitted a note stating therein that out of 32 P.Ws. 10 have been examined, 11 given up and the statements of remaining 11 witnesses were yet to be recorded who were summoned for 19-5-1990. It was further stated that the learned Sessions Judge who was seized of the matter was on leave and would resume duty on 14-5-1990 and would work upto 20-5- 1990 whereafter he shall proceed on leave for Haj. In the circumstances, I adjourned the case to 22- 5-1990 expressing the hope that the learned Session's Judge shall conclude the trial on 19th and 20th May, 1990. Learned counsel for the petitioner has today submitted that on 19-5-1990, defence counsel (Mr. Ihsan Qadir Shah and Mian Muhammad Zahoor Lali, Advocates) sent a written request for adjournment stating that they were engaged in their professional work at their respective stations. Learned Sessions Judge allowed the request in the interest of justice and adjourned the case to 21-5-1990 with the direction that if either of the defence counsel did not appear on that date, the accused would be defended by a counsel (Mr. Arshad Aslam Khan, Advocate Leiah) at State expense and the power of attorney of the defaulting defence counsel shall be treated as cancelled. While adjourning the case learned trial Court noted some defect in the charge already framed and observed that it needed alteration which exercise, it was observed, shall be taken in the presence of the defence counsel. On 21-5-1990, parties counsel as also the D.D.A. Agreed that the charge was not correctly drawn and it needed to be altered. Learned trial Court, therefore, framed a new charge-sheet which was read over to the accused who did not plead guilty thereto and claimed trial. Petitioner and his co-accused Hakim Ali relied upon the prosecution evidence already recorded whereas the remaining accused requested for re-summoning the prosecution witnesses for further cross-examination. Their request was allowed and the P.Ws. Whose statements had already been recorded were summoned for cross-examination. Learned trial Court observed that although the case had to be continued without any break in pursuance of the direction of this Court but since he was proceeding on leave for Haj, he adjourned the case to 25- 7-1990.
5. Learned counsel for the petitioner contends that in view of the aforementioned developments, case is not likely to conclude in the near future. P.Ws. Whose statements had already been recorded have to be cross-examined again and the remaining prosecution evidence is also yet to be recorded. In the circumstances, he argues that since the petitioner has been in continuous detention for the last 2 years and 8 months and the conclusion of the trial is not in sight, he is entitled to bail by virtue of third proviso to section 497(1), Cr.P.C. Contention of the learned counsel appears to be correct. In the circumstances, this application is allowed and the petitioner is admitted to bail in the sum of Rs.50,000 (fifty thousand only) with two sureties, each in the like amount, to the satisfaction of A.C./Duty Magistrate, Jhang.
SA./T-137/L