1. ' Applicant is facing trial under section 302, P.P.C. In Crime No,219 of 1992 registered at Mehmoodabad Police Station, Karachi. The applicant applied for bail before the learned Sessions Judge, Karachi (South) which was rejected by him on 24-1-1995.
2. ' It is alleged in the F.I.R. Lodged by Abdus Sattar on 22-8-1992, that on the day of incident at about 1-30 p.m. He along with his brother Abdul Ghaffar were at the shop when applicant/accused who is their brother-in-law came there. He was in uniform and was also having his official rifle. He asked his brother Abdul Ghaffar that he had created rift between him (applicant/accused) and his wife and is also creating hurdles in compromise. He fired a burst from his official rifle to Abdul Ghaffar which hit him and he fell down and died. This incident was also witnessed by his nephew Rizwan, brother Abdul Jabbar and other residents of Muhallah.
3. ' Mr. Ch. Iftikhar Ahmed, learned counsel for the applicant contends that applicant is in jail since 22- 8-1992, but the case is completed so far. According to him this delay in conclusion of trial is not due to any act of the applicant. He further submitted that applicant is entitled to grant of bail under the IIIrd proviso to section 497(1), Cr.P.C. He next argued that applicant was a policeman as such, he cannot be termed as hardened criminal or previous convict.
4. ' Mr. Aziz ur Rehman, Advocate for A.-G. For State concedes to the grant of bail. He contended that applicant/accused has remained in jail kir more than 2-1/2 years and this delay in conclusion of the trial is not due to any act of the applicant.
5. ' Heard both the learned counsel and perused the record. The applicant had been arrested on 22- 8-1992. The case was first challaned in the Court of Sessions Judge, Karachi South, and before it could proceed there, the same was transferred to Special Court-III(STA), Karachi by virtue of Home Department's Notification No, REG(HD)/5-3(2)91, dated 20-1-1993. Against this transfer of case the applicant's brother filed a Constitutional Petition No,D-626 of 1993. Under the directions of the High Court the proceedings were stayed and finally by order dated 7-7-1994 the petition was allowed and case was transferred back to the file of Sessions Judge, Karachi (South) for trial. Learned counsel for the applicant has produced case diaries pertaining to the date of hearing before the Sessions Judge which shows that only on two dates i,e, 9-10-1994 and 13-11-1994 the case was adjourned at the request of the applicant. These two adjournments totalled to about 30 days only.
6. The delay in the trial has been mainly caused due to transfer of the case from the Court of Sessions Judge to Special Court-III (STA) and vice versa; and subsequent stay order by the High Court. This delay cannot be attributed to any act of the accused and was due to illegal orders passed by the Government in transferring this case from Sessions Court to Court of Special Judge (STA). In this regard reliance can be placed on case of Sher Ahmed v. The State (1995 SCM R 144).
7. Admittedly applicant was a policeman. It is presumed that he is not a hardened criminal or previous convict as records are always checked for getting employment in Police Department.
8. ' In. View of the fact that applicant has remained in jail for more than 2-1/2 years, delay in trial is not due to any act of the applicant, and it is not certain as to when the case will conclude applicant is entitled to grant of bail under IIIrd proviso to section 497(1), Cr.P.C. Reliance in this regard can be placed on Zahir Hussain Shah v. The State (PLD 1995 SC 49) in which it has been held:-- "The right of an accused to be enlarged on bail under the 3rd proviso to section 497(1), Cr.P.C. Is a statutory right which cannot be denied under the discretionary powers of the Court to grant bail.
9. The right of an accused to get bail under the 3rd proviso to section 497(1), Cr.P.C. Is not left to the discretion of the Court but is controlled by that provision. The bail under the 3rd proviso to section 497(1), Cr.P.C. Can be refused to an accused by the Court only on the grounds that the delay in the conclusion of the trial had occasioned on account of any act or omission of the accused or any other person acting on his behalf. The bail under the 3rd proviso to section 497(1), Cr.P.C. Can also be refused by the Court if the case of the accused fell under the 4th proviso to section 497(1), Cr.P.C. In all other cases the Court must grant bail."
10. Accordingly, applicant is granted bail in sum of Rs,2,00,000 and P.R. I D in the like amount to the satisfaction of the Trial Court.