1. ' Amir Qadir, petitioner herein, is accused in case F.I.R. No,364, dated 28-12-1992 Police Station Saidu Sharif under section 302/307/34, P.P.C. For effectively firing with fire-arms on Amir Bahadur and Shakirullah who died later on in the hospital on 28-12-1992.
2. ' The petitioner applied for grant of bail before the forum constituted under Provincially Administered Tribal Areas Criminal Law (Special Provisions) Regulation, 1975 (Regulation I of 1975) without any success. The petitioner then applied for grant of bail before a learned Magistrate who dismissed the application by an order, dated 9-3-1994. The petitioner applied for bail in the Court of learned Sessions Judge, Swat and the same was dismissed by order, dated 8-5-1994. Hence the instant application.
3. ' The petitioner was arrested on 4-1-1993. Complete challan was put in the Court of learned A.C./S.D.M., Swat on 19-8-1993 and on 30-10-1993 of Jirga was constituted and the case file was sent to the Court of the learned who ordered on 8-11-1993 for producing prosecution witnesses on 22-11-1993 on which date the case was adjourned to 4-12-1993 and till 22-8-1994 the case was adjourned for further proceedings without recording the statement of any prosecution witness.
4. The question of trial of the case before a proper forum is not certain in District Swat rather no forum has been provided so far. The Code of Criminal Procedure, 1898 (Act V of 1898), the Pakistan Penal Code, 1860 (Act XLV of 1860), the Evidence Act, 1872 (I of 1872) and the Police Act, 1861 (V of 1861) has been applied to Swat by Tribal Areas (Application of Laws Regulation, 1970 (Regulation I of 1971). The Code of Criminal Procedure, 1898 will be applicable in considering the application for grant of bail under the provisions of the Code before the forum provided therein in absence of forum or Court of law for trial of the case.
5. ' The petitioner is no more required for the purposes of investigation or inquiry and is in the judicial lock-up since 4-1-1993. An accused person is entitled for grant of bail in a criminal case if there is inordinate delay in prosecution of the case. This rule has been applied even in the cases where the Presiding Officers or Special Courts like a Judge of a Court trying Anti-Corruption cases, a Judge trying a case under the Custom Laws or in absence of the forums i,e, constituting a Court for trial of the cases by Special Courts excluding the jurisdiction of the ordinary criminal Courts under the Code of Criminal Procedure, 1898. The Special Courts or the ordinary criminal Courts as and when constituted have the jurisdiction in a criminal case to decide by an order the matters related to the criminal case under the Code of Criminal Procedure including the matter of grant of bail or recall of the grant of bail in the circumstances of each case.
6. ' This Court in the case of Qaimat Zamin v. The State Criminal Miscellaneous/Bail Application No,811 of 1994 by an order, dated 25-10-1994 granted the bail to the accused-petitioner on the rule that delay has been caused in the prosecution of the case. In the case of Umar Muhammad v. The State Criminal Miscellaneous/Bail Application No,723 of 1994 this Court by a detailed order, dated 11-10- 1994 granted bail to the accused-petitioner on the same rule.
7. This application is, therefore, accepted and the accused-petitioner be released on bail in the sum of Rs,2 lacs with two sureties each in the like amount to the satisfaction of Illaqa/Duty Magistrate.
8. ' It is observed that this order is passed not on merits of the case. The learned Judge of the trial Court may pass appropriate orders in the matter of bail or recall of the grant of bail as and when constituted by or under the Code of Criminal Procedure, 1898 or any other law on merits of the case irrespective of this order.