' Applicant Muhammad Tahir is facing trial under section 302/34, P.P.C. In F.I.R. No,114/91 registered at Police Station Gulberg, Karachi lodged by Syed Muhammad Khalid, father of deceased Syed Muhammad Niaz Waris who was allegedly murdered by the present applicant alongwith his brother Zahid on 13-4-1991.
2. Facts narrated in the F.I.R. By the complainant can be summarized as under:-- ' The deceased and the applicant had a quarrel on 12-4-1991. Applicant is alleged to be a wanderer and of bad character. As the deceased always opposed him, therefore, applicant threatened him to kill. On 13-4-1991 at 6-00 p.m. When the complainant came back from his office, he saw several people gathered in front of his house. He was told by the people that present applicant had fired upon the deceased while his brother had caught hold of him. F.I.R. Also contains the names of several witnesses namely, Muhammad Aftab Malik, Jalaluddin, Imran, Sharif, Muhammad Ishaque Qasmi and Nadeem Pervaiz who are stated to be eye-witnesses. The deceased at that time was still alive, so he was taken to Abbasi Shaheed Hospital but he succumbed to his injuries. Hence F.I.R.
Was lodged by the complainant against the present applicant and his brother Zahid. Zahid is stated to have been released on bail while the present applicant who was arrested on 26-5-1991 is still in custody.
3. During the period of last four years only four witnesses were examined namely, Masood, Akram, Imtiaz and Muhammad Aftab Malik. First bait/ application of the present applicant was dismissed by this Court on 26-9-1994 because the same was withdrawn by the learned Advocate when the Court issued directions to the trial Court to record evidence of material eye-witnesses.
4. No doubt evidence of several witnesses has been recorded by the trial Court, but neither the trial was concluded nor evidence of all material eyewitnesses could be recorded till date.
' Regarding previous record of the applicant it has been submitted that there was only one criminal case against him but the said case was dropped. Hence it is obvious that the applicant was not previously convicted and therefore, he does not fall within the clutches of fourth proviso to be deprived from the right of being released under the third proviso to section 497(1), Cr.P.C. Another case against the present applicant, which is connected case, is pending under section 13-D, Arms Ordinance and it is a matter of great concern that even the charge has not been framed against the applicant since 1991. Similarly, it has not been alleged by the prosecution that the accused is/was hardened, desperate or dangerous criminal. The diary sheet of the trial Court regarding proceedings radiates that neither applicant nor any person on his behalf is responsible for the delay in concluding the trial against the applicant. In these circumstances, the applicant may not be deprived of his right of being released on bail after the expiry of stipulated period under third proviso to section 497(1), Cr.P.C. Particularly when the trial Court could not record the evidence of all material eye-witnesses as directed by this Court.
5. Mrs. Nasreen Zafar, learned counsel for the State has opposed the grant of bail to the present applicant on the ground that the ground of statutory delay was available to the learned counsel when first bail application was moved but the said ground had not been agitated in the bail application. It was, therefore, contended by her that bail be not granted on the said ground at this stage.
' No doubt, the said found was not taken by the learned counsel but in criminal cases it is not barred if the learned counsel agitates that ground in fresh bail application. In this regard, criminal cases be differentiated from civil cases. It is only in civil cases where a plaintiff cannot seek a relief in a fresh -lit if the said relief was not sought in a previous suit provided the same was available at that time because Order II, Rule 2, C.P.C. Puts a bar in seeking that relief. No such provision of law has been introduced in the Code of Criminal Procedure to put any bar in seeking such relief in fresh bail application if the same was not sought in the previous bail application.
6. In view of the reasons listed above, I grant bail to the applicant as none of the prohibitions contained in the third and fourth provisos to subsection (1) of section 497, Cr.P.C. Is attracted to deprive the applicant from his statutory right of being released on bail on the ground of statutory delay. The applicant is, therefore, ordered to be released on bail on his furnishing solvent surety in the sum of Rs,2,00,000 (Rupees two lacs only) and P.R. Bond in the sum of Rs,3,00,000 (Rupees three lacs only) to the satisfaction of the trial Court.
7. The trial Court is required to conclude the trial within shortest possible time but it may not be appreciable if it takes more than three months. This matter be not adjourned for more than seven days after every date of hearing in future till its disposal.
' Criminal Bail Application No,267 of 1995 stands disposed of accordingly.