' Malik Muhammad Ishaq who is stated to be the District President of Sipah-e-Sihaba of District Rahimyar Khan alongwith Sultan Ahmad who is stated to be a member of Sipah-e-Sihaba were arrested on the 3rd of February, 1993 in pursuance of a case registered against them and some others vide first information report No,2/93, dated the 1st of January, 1993 registered at Police Station Sadar Khanpur, District Rahimyar Khan, recorded under section 324/364/148/149, P.P.C.
Regarding an occurrence which took place on the 1st of January, 1993 at about 4-45 p.m. In the area of Basti Aukhar Vand which is about 10 kilometres from Police Station Sadar Khanpur of District Rahimyar Khan.
' Nazir Hussain who was injured in the occurrence which took place on the 1st of January, 1993 died in hospital on the 2nd of January, 1993. Accordingly, section 302, P.P.C. Was added to the first information report.
2. According to the prosecution Malik Muhammad Ishaq (petitioner No,1) exhorted and incited his followers and sympathisers to violence and that as a result thereof Malik Muhammad Ishaq (petitioner No,1) alongwith Sultan Ahmad (petitioner No,2) and their friends, followers and sympathisers resorted to indiscriminate firing as a result of which Nazir Hussain was injured and subsequently died.
' The specific role assigned to Malik Muhammad Ishaq (petitioner No,1) is to the effect that he resorted to firing. The specific role assigned to Sultan Ahmad (petitioner No,2) is to the effect that he caused injuries to Nazir Hussain with the Butt of his rifle.
3. The medico-legal report and the post-mortem report of Nazir Hussain show that there were 12 injuries on the person of Nazir Hussain and that out of these 12 injuries some had been caused by a fire-arm while some others were the result of blunt weapons.
' The fatal injury, however, seems to be injury No,3 which is on the chest of the deceased.
4. The question, however, is whose shot caused the fatal injury? Presently no answer is available either from the first information report or the remaining material collected by the prosecution. The answer might or might not come when the trial commences and evidence is recorded. For the time being suffice it to say that the fatal shot is not specifically attributed to the petitioners. As a matter of fact, no firing at all has been attributed to Sultan Ahmad (petitioner No,2) against whom the allegation is that he caused injuries to the deceased with the Butt of his rifle. Prima facie, all the injuries on the person of the deceased which were caused by a blunt weapon seem to be simple in nature.
5. From a bare reading of the first information report, it seems that there was no intention on the part of the petitioners to murder Nazir Hussain deceased. But, this too is a question which will be determined only when the trial commences and evidence is recorded. It will be for the trial Court to draw its own independent conclusions.
6. This whole matter was investigated by the Assistant Superintendent of Police of Sadiqabad, District Rahimyar Khan who seems to have come to the conclusion that actually there was cross- firing between the parties involved in this unfortunate incident and that the possibility of the firing having been started by the complainant party cannot be ruled out. This question too can be decided only at the trial when the entire evidence has been recorded and it will be open for the trial Court to come to its own independent conclusions.
7. Although the petitioners were arrested on the 3rd of February, 1993 and are in jail eversince and although the challan was submitted on the 3rd of January, 1994, yet the trial has not commenced.
Consequently, the petitioners have been languishing in jail for almost two years, just 16 days short of two year, to be exact.
' A concept of a fair trial necessarily includes trial without inordinate delay. The requirement of a trial without inordinate delay is reflected in the proviso to subsection (1) of section 173, Cr.P.C. Which requires that:-- "Provided that, where investigation is not completed within a period of fourteen days from the date of recording of the first information report under section 154, the officer-in-charge of the police station shall, within three days of the expiration of such period, forward to the Magistrate through the Public Prosecutor, an interim report in the form prescribed by the Provincial Government stating therein the result of the investigation made until then and the Court shall commence the trial on the basis of such interim report, unless, for reasons to be recorded, the Court decides that the trial should not so commence."
' The argument of the learned counsel appearing on behalf of the State that there are not sufficient number of Sessions Judges is of no avail because no citizen can be kept in jail without trial on that ground. The intention of the law seems to be quite clear by the use of words "Court shall commence the trial on the basis of such interim report, unless, for reasons to be recorded, the Court decides that the trial should not so commence." It is also now settled law that bail cannot be withheld as a punishment. Basic principle has always been and continues to be that an accused person is presumed to be innocent until he has been found guilty. The presumption of innocence will continue and come to an end only upon the recording of a conviction by a competent Court.
8. According to the learned counsel appearing on behalf of the State a large number of empty shells have been recovered from the place of occurrence but there is nothing on the record to show that any one out of those empties match with the fire-arms allegedly recovered from the petitioners. I am restraining from commenting on this aspect of the prosecution case and leaving it for the prosecution to explain its case at the trial.
9. For the time being, prima facie, reasonable grounds to believe that the petitioners are guilty of an offence punishable with death, imprisonment for life or imprisonment for ten years do not seem to exist. The case against the petitioners seems to be a case of further enquiry within the meaning of subsection (2) of section 497, Cr.P.C. Which entitles them to the grant of bail.
10. Resultantly the petitioners are granted bail provided they furnish bail bonds in the sum of Rs,50,000 each with two sureties each in the like amount to the satisfaction of the Assistant Commissioner/Duty Magistrate of Khanpur.