' Said Bacha, petitioner, seeks bail in a case registered against him and his 3 other co-accused under sections 302 and 307 read with section 34, P.P.C. At Police Station, Ghaligay, District Swat vide F.I.R. No,171, dated 22-3-1992. The petitioner and his co-accused after arrest moved the Court of learned Magistrate Fist Class, Swat, for their release on bail pending trial. The learned Magistrate admitted to bail Lal Bacha, Gul Bacha and Akram Khan alias Hakim Khan, co-accused of the petitioner but did not extend this concession to Said Bacha, petitioner herein vide order, dated 2-4- 1994. Feeling aggrieved of the order aforesaid, the complainant Fazal Rahim moved the Court of Additional Sessions Judge, Swat, for the cancellation of bail of co-accused of the petitioner whereas Said Bacha, petitioner, filed an application for bail. The learned Additional Sessions Judge, Swat, rejected both the applications vide order dated 8-5-1994.
2. The petitioner has now moved in this Court Criminal Miscellaneous Bail Application No,526 of 1994 for bail while the complainant/petitioner has filed Criminal Miscellaneous/B.C.A. No,497 of 1994 for the cancellation of bail granted to co-accused of the petitioner. Since both the petitions arise out of the same F.I.R., therefore, they are being disposed of by this single order.
3. The brief facts of the case are that on 22-3-1992 at 16-45 hours Fazal Rahim, complainant, lodged a report at Police Post, Shamozal lying within the limits of Police Station Ghaligay in Swat District, wherein he had alleged that a quarrel over the payment of pick-up far from accused Said Bacha, Lal Bacha, Gul Bacha and Akram alias Hakim Khan ensued which got a serious turn. Akram alias Hakim is alleged to have caught hold of Izat Khan, son of the complainant, while Said Bacha is stated to have stabbed him on the abdomen, as a result of which he died. Lal Bacha is charged for firing at Sher Ali P.W., as a result of which he got injured on his left hand. Gul Bacha is alleged to have given a Lathi blow to the complainant who suffered injury on his head.
4. Mr. Imdad Hussain Adil, learned counsel for the petitioner in Criminal Miscellaneous/Bail Application No,526 of 1994, contended that it was a cross-case of F.I.R. No,142, dated 22-3-1992 in which the deceased Izat Khan, Fazal Rahim, complainant and Zafar Ali were charged for the offence under section 307, read with section 34, P.P.C. And, therefore, it has yet to be determined as to which of the party was aggressor and aggressed. It was next submitted that after completion of the investigation in the case in hand the challan had been put in Court on 11-7-1993 but the trial has not been commenced muchless than completed and that the petitioner is suffering his detention since 22-3-1992 which comes to about thirty months. In this context it was further pointed out that in view of the judgments of the Supreme Court , and the High Court, the trials under the PATA Regulation have been stopped and the cases including the one against the petitioner and his co-accused have been kept pending awaiting orders of transfer for trial in the Courts of Sessions. According to him, due to this eventuality, there are no prospects of the cases being taken up for trial in the near future and the petitioner would be entitled to bail on the ground of delay in general even if bail is not claimed on the basis of statutory delay.
' Mr. Abdur Rauf Khan Gandapur, Advocate, appearing on behalf of the State assisted by Mian Iqbal Hussain, learned counsel for the complainant, strenuously opposed the release of the petitioner on bail and submitted that the learned Courts below had dealt with, in detail, the plea of the petitioner qua the registration of cross-case and after referring to the opinion of the Medical Board that it was a case of false charge had not entertained it. As regards the delay, it was maintained that it had been occasioned due to frivolous applications moved by the petitioner and his co-accused for bail. According to the a, the petitioner and his co-accused were required to have moved either the Magisterial Court or the Court of Sessions for trial of the case and having not resorted to this remedy, they cannot now turn round and claim bail on the ground of delay in the commencement of the trial.
5. I have given my anxious thought to the contentions raised by the learned counsel for the parties in both the applications and the State. After reviewing the case-law in pre 1979 era and the post 1979 period, namely, (i) Muhammad Nawaz v. The State 1968 SCM R 683, (ii) Riyasat Ali v. Ghulam Muhammad PLD 1968 SC 353, (iii) Manzoor Khan v. Kamir 1972 SCM R 207, (iv) Muhammad Khan v.
Attaullah and others 1974 SCM R 165 (v) Ahrar Muhammad and others v. The State PLD 1974 SC 224 I am of the considered opinion that it was never the intention, of the Superior Courts to release an accused person on bail who stood charged with capital offence on the ground of delay simpliciter.
While dealing with such cases, the Court would also see whether any delay has been occasioned purposely on the part of the prosecution or the same has occurred due to circumstances beyond its control or due to legal impediments. In the case before me, the perusal of the order-sheets would show that the prosecution had not put in challan before the Court from 22-3-1992 to 11-7- 1993. This period comes to about 14 months. Finally, the challan was put in the Court of Assistant Commissioner, Swat on 11-7-1993 and the accused were summoned from jail. On 25-7-1993 the accused were shown to be present in custody and the complainant was summoned for 9-8-1993 on which date the accused were present but it is not clear as to whether the complainant did or did not attend the Court but he was again summoned for 15-8-1993. On the said date and the adjourned hearing on 30-8-1993 the accused were not produced from jail and were, therefore, directed to be summoned through "Zamima B" for 13-9-1993 on which date the Presiding Officer was on some duty. The accused had also not been produced and, therefore, the case was adjourned to 29-9-1993. Again the Presiding Officer was recorded to be busy in election work and the case was accordingly adjourned to 12-10-1993 and again to 24-10-1993 on the same ground. In the meantime, co-accused of the petitioner were released on bail. The petitioner was present on 24-10-1993 in custody and the other accused were summoned for 27-10-1993 on which date all the accused alongwith the complainant were present. A Jirga was constituted and the parties were directed to appear before the Court of EA.C.-II, Swat on 7-11-1993. On the adjourned hearing as aforesaid the accused was not produced from jail and he was directed to be produced through "Zamima B" and the P.Ws. For 21-11-1993. It is not clear as to whether the accused were or were not present on that date but they were again directed to be summoned for 4-12-1993 on which date again the accused were not produced from jail and the case was posted to 14-4-1994 for further proceedings. On the said date the Presiding Officer was on leave and the case was directed to be put up on 18-4-1994. In the meantime, the file was received from the Court of Sessions Judge, Swat and the accused were directed to be summoned for 14-6-1994. Again the file is recorded to have been received although it had already been received earlier and the accused were directed to be summoned for 28-6-1994 on which date accused Said Bacha was produced in custody while the other accused were absent and in the meantime, this petition was moved.
6. It would thus be seen that the delay that occurred either during the investigation or after the challan was put in the competent Magistrate Court is not attributable to any act or omission on the part of the petitioner or any other person acting on his behalf. There is a short period during which files were requisitioned by the PATA Courts or the regular Criminal Courts for bail. The assertion that frivolous applications for bail were moved time and again is not borne out from the record. At the initial stages, the competent PATA Courts are not shown to have been moved for more than once.
Similarly, the Criminal Courts are not shown to have been approached for more than one time after the pronouncement of the judgment of the Supreme Court whereby the proceedings under the PATA Regulation were declared to be ultra vires the provisions of the Constitution. The perusal of the record would show that negligible time was taken in the disposal of the application for bail at that stage. Nonetheless, it is a settled proposition of law that the time consumed bona fide in prosecution of the plea of bail cannot be attributed to any act or omission of the accused or any other person acting on his behalf.
7. It is clear from the above narration of facts that the accused-petitioner is lodged in jail since 22- 3-1992 without any evidence having been brought on the record against him. There are also no prospects of the cases being taken up in the near future as well. Accused-petitioner, therefore, cannot possibly be held responsible for this delay which had occurred after the registration of the case on 22-3-1992. In view of the delay that has occurred in the case, I direct that the petitioner shall be released on bail in the sum of Rs,1,00,000 with two sureties each in the like amount to the satisfaction of the Illaqa Magistrate.
8. After going through the orders of both the learned Magistrate and the learned Additional Sessions Judge, Swat, I am of the firm view that the accused-respondents in Criminal Miscellaneous/B.C.A. No,497 of 1994 were rightly enlarged on bail. Any opinion expressed by them or by this Court shall be taken as tentative in nature and shall not be considered as determinative of the merits of the case. Accordingly the objection that the reasoning of the two Courts below in allowing bail to the accused-respondents was not warranted in law is misconceived. With these observations, the plea for cancellation of bail granted to the accused-respondents in Criminal Miscellaneous/B.C.A. No,497 of 1994 is not entertained and the petition stands dismissed accordingly. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.