' The petitioners who are involved in a case under section 302/34, P.P.C. Arising out of F.I.R. No,194, dated 7-5-1993, registered at Police Station Ganjmandi, seek to be admitted to bail on statutory ground, as petitioners Nos.1 and 2 are behind the bars since 7-5-1993 and 15-5-1993, respectively and their trial has not yet concluded.
2. The learned counsel for the petitioners contended that delay in the conclusion of the trial could not be attributed to the petitioners. The learned Judge while dismissing their bail application erred in law while attributing the delay in the disposal of the case to the petitioners. He contended that initially this case was entrusted to an Additional Sessions Judge, Rawalpindi, who fixed the same for evidence on 24-10-1993. Thereafter, the case was transferred to the Special Court for Speedy Trials.
The said Court recorded the entire evidence. However, against the entrustment of the said case to the Special Court, the petitioners filed Writ Petition No,1068 of 1993, wherein announcement of final judgment was stayed by a Division Bench of this Court vide order, dated 17-10-1993. After the abolition of Special Courts for Speedy Trials, the case was re-transferred to another Additional Sessions Judge, where it is pending awaiting the decision of the writ petition. The learned counsel submitted that as the delay in the disposal of the case is due to the aforesaid order of the High Court and not due to the act of the petitioners hence they are entitled to the grant of bail on statutory ground. Placed reliance on PLD 1995 Kar. 347 and 349, PLD 1994 SC 93, 1983 SCM R 341 and 1991 PCr.LJ 534.
3. The learned Law Officer appearing for the State has opposed this bail application on the ground that the case-law relied upon by the learned counsel for the petitioners is distinguishable. He submitted that the trial has almost concluded, but due to the stay order granted in the writ petition, the trial Court could not pronounce the judgment; hence the delay is not attributable to either party. Placing reliance on the legal maxim that act of the Court should not harm anybody, learned Law Officer argued that the petitioners are not entitled to the grant of bail when the case is ripe for pronouncement of judgment and the judgment is being delayed on account of the stay order referred to above. He submitted that the petitioners can move the learned Court for the withdrawal of the writ petition, as it has become infructuous on account of re-transfer of the case from the Special Court to the Court of Additional Sessions Judge, where it is currently pending.
4. I have heard the learned counsel for the parties and have perused the record.
' Admittedly initially, the case was pending before an Additional Sessions Judge, Rawalpindi, for trial, but due to the gruesome nature of the case it was transferred to the Special Court for Speedy Trials, as two persons lost their lives allegedly at the hands of the petitioners. The petitioners challenged the vires of the transfer order of the ease to the Special Court and a Division Bench of this Court vide order, dated 17-10-1993, directed that trial shall continue but final judgment should not be announced. In pursuance of the said order, the trial concluded and even the application moved by the petitioners for recalling the witnesses already examined by the Special Court was dismissed by the trial Court.
' Now the question that arises for consideration is whether in view of the peculiar circumstances created by the order of this Court, the delay which occurred in the decision of the case could be attributed to the prosecution or the petitioners. Respectfully relying on the legal maxim that nobody should be harmed by the act of the Court, I find the prosecution cannot be penalized for the delay in not announcing the judgment of the case by the trial Court due to the stay order passed by this Court in the Constitutional petition filed by the petitioners themselves, which is otherwise ripe for announcement of judgment after hearing the arguments of the parties.
Resultantly, I see no ground to enlarge the petitioners on bail on statutory ground on this score and dismiss this petition accordingly.