' The petitioner through the present petition has sought post-arrest bail in a case registered vide F.I.R. No,209, dated 1-8-1993 under section 302/34, P.P.C. At Police Station Sadar, Sialkot.
2. The bail for the petitioner is being pressed on statutory ground only. In this respect the learned counsel pointed out that despite lapse of over two years and seven months, the trial of the case, in question, has not been concluded and that the delay occasioned is not attributable to the petitioner or any one acting on his behalf. In this respect, certified copies of the order-sheets, of the learned trial Court are annexed herewith. In support of his contentions the learned counsel placed reliance upon Zahid Hussain Shah v. The State PLD 1995 SC 49 wherein it was laid down that the bail on statutory ground i,e, under the third proviso of section 497, Cr.P.C. Has to be granted as of right and that under such m circumstances no discretion is left with the Court. It was further held therein that only the provisions of fourth proviso of the said section will bar grant of the bail, if denial of bail is made out on that basis under the facts and circumstances of a case.
3. Learned counsel for the petitioner further argued that at present the proceedings, in the instant case, are not taking place because of the record of the case has been summoned by the Honorable Supreme Court, as has been stated at the bar by the learned counsel for the State today, pursuant to the proceedings initiated against the discharge of co-accused Muhammad Saleem, who was also discharged from the complaint filed in respect of the occurrence i,e, the subject-matter of the instant case, but as the revision petition against the same had been allowed by the High Court on 23rd of April, 1995, the said order has been impugned before the Honorable Supreme Court by the said Muhammad Saleem; and in this respect further argued that the stay of proceedings of the trial Court, pursuant to the record having been summoned by the Honorable Supreme Court, cannot be held against the present petitioner.
4. The learned counsel for the State opposed the present bail petition by stating that the contents of the F.I.R. Disclose the petitioner/accused to be of desperate nature as he had chased the deceased up to his house and thereafter had climbed up the roof of the adjoining house wherefrom he is alleged to have caused the murder in question.
5. The learned counsel for the complainant, appearing with permission of the Court, adopted the same arguments, and in that respect further emphasized that, as held in Moundar v. The State 1988 SCM R 174 reported in PLD 1990 SC Magazine page 1, the Court will take into consideration other materials produced by the prosecution in order to show that the case falls within the prohibition, contained in fourth proviso to deny bail, even if a case for the same is made out on statutory ground. The learned counsel for the complainant, however, pointed out that even in the said case the Honorable Supreme Court had allowed bail to the accused although the bail had been denied to them by the Honorable High Court of Sindh by invoking the provisions of fourth proviso. And further reliance is placed upon 1992 PCr.LJ 2614 wherein the bail had been denied to the accused on the statutory ground by holding that the mode and manner in which the alleged offence had taken place, bring's the case of the accused under the provisions of fourth proviso of section 497, Cr.P.C.; and further stressed that the same principle had been upheld in 1990 PCr.LJ 537.
6. At this stage the learned counsel for the State was asked to read out the contents of the F.I.R. And to point out as to on what basis it can be said that the instant case falls within the provisions of fourth proviso of section 497, Cr.P.C. The relevant portion of the F.I.R. Emphasized in that respect by the learned counsel for the State and the complainant, was to the effect that the complainant party had come to their own house after an altercation had taken place between one Muhammad Sardar, brother of the complainant herein, and the wife of the petitioner accused, earlier in Galli, but, nevertheless, the accused party had come to the house of the complainant and indulged in lurking abuse and in extending threats whereupon the complainant had gone up to the roof top of their house, whereas the accused party had also gone up to the roof top of their own house. It is further alleged herein that when the deceased Muhammad Ashraf tried to pacify the accused, Muhammad Saleem co-accused, discharged from the case in question, had fired first at the deceased with his gun, hitting him on the left side of his chest, whereas the present petitioner/accused had fired subsequently which had also hit the deceased on his chest.
7. The Court is constrained to observe that the contents of the F.I.R., as read out, in fact, highlights the circumstances that the instant case was a result of altercation between the parties on two occasions i,e, the earlier to the alleged murderous assault, the exchange of abuses etc., having been taken place in the lane and thereafter on the roof top when the deceased Muhammad Ashraf, as stated above, had confronted the accused party to pacify them, and it cannot be held at this stage that the conduct of the accused/petitioner was that of a desperado and dangerous criminal on the basis of what at present are just allegations leveled; and that the said allegations per se fail to establish that the present petitioner is "a hardened, desperate or dangerous criminal or involved in terrorism". And in this respect strength is drawn by placing reliance on the cardinal principle of law of administration of criminal justice, under our legal system, that the accused is innocent unless proved guilty as charged pursuant to a trial conducted by the competent Court. It has been further taken notice of that the State has not been able to point out that the delay in concluding the trial of the case, in question, can be attributed to the petitioner in any manner, to bring his case for bail out of the ambit of the statutory provisions. It was further confirmed on behalf of the State that the petitioner is neither a previous convict e nor a hardened criminal.
8. Therefore, pursuant to the above discussion, and placing reliance on the principle laid down in the case cited by the learned counsel for the petitioner i,e, Zahid Hussain Shah v. The State PLD 1995 SC 49 to the effect that bail on statutory ground is a right and not in the discretion of the Court, it is hereby held that a case for bail, on statutory ground, is made out in respect of the present petitioner as the trial of his case in question has not concluded despite his continued detention for more than two years and as the delay so occasioned is not the result of any act or omission by him or any other person acting on his behalf or in exercise of any right or privilege under any law for the time being in force. Consequently, the petitioner is hereby allowed bail in the sum of Rs,50,000 with two sureties each, in the like amount, to the satisfaction of the learned Additional Sessions Judge/Trial Court, Sialkot.