An occurrence took place on 28-12-1990 within the area of Mauza Jamalpur within the territorial limits of Police Station Sadar, Kehror Pacca, District Lodhran regarding which F.I.R. No.356 dated 28- 12-1990 was got registered at the said Police Station under sections 302, 337-A/34, P.P.C. One day before the occurrence the cattle of the complainant party damaged the crop of the accused party who were annoyed thereof. On 28-12-1990 at 2-20 p.m. Karim Bakhsh and Rab Nawaz co-accused each armed with Sota and Ashiq Muhammad petitioner-accused armed with .12 bore pistol surprised Shah Muhammad complainant and his brother Muhammad Nawaz (deceased of this case). Karim Bakhsh gave a Sota blow on the back of head of Shah Muhammad complainant. Their alarm attracted Ghulam Farid and his brother Haq Nawaz P.Ws. Within sight of the P.Ws Ashiq Muhammad petitioner fired with his .12 bore pistol which hit on the front chest of Nawaz who fell down and expired. The accused persons made good their escape.
2. The accused could be arrested by the police on 20-1-1991 when he was produced by a respectable of the area alongwith the pistol which was taken into possession vide memo.
3. After necessary investigation the challan indictment under section 173, Cr.P.C. Was submitted in the Court of Session as contemplated under section 190(3), Cr.P.C. The same was entrusted to an Additional Sessions Judge by the Sessions Judge, Lodhran. The charge was framed on 10-7-1993 Uptil now the medical witness and two police officers have been examined. Through the making of this petition Ashiq Muhammad petitioner is desirous to be admitted to bail on the statutory ground contained under proviso 3(b) to subsection (1) of section 497, Cr.P.C. According to which an accused involved in a case punishable with death is entitled to be admitted to bail as of right in case the continuous period of his detention exceeds two years and whose trial for such offence has not concluded.
4. I called for the report from the Additional Sessions Judge which has been received. According to him on 17-11-1993, 13-1-1994, 27-I-1994, 25-5-1994, 3-7-1994 and 11-10-1994 the adjournments were granted due to the non-availability of the learned defence counsel. It is further submitted in the report that on 20-7-1994, 27-11-1994, 14-12-1994, 12-1-1995 and 14-3-1995 the case was adjourned as Ashiq Muhammad accused was not produced from judicial lock-up Central Jail, Bahawalpur.
5. I have heard the learned counsel for the petitioner as well as learned State Counsel and gone through the record before me. The factual position is that Ashiq Muhammad petitioner was arrested on 20-1-1991 and today is 5-6-1995. It means that the continuous period of his detention is about 4-1/2 years. His appearance from judicial lock-up Central Jail, Bahawalpur which is at a distance of about 15 kilometres from Lodhran is not within his own jurisdiction because he has to be produced under custody by the concerned authorities. Keeping in view the facts that the continuous period of detention of this petitioner Ashiq Muhammad is about 4-1/2 years and only three P.Ws. Have been examined he cannot be said to be at fault. His trial has not been concluded due to the fact that the trial is being conducted in a perfunctory manner. My view is that Ashiq Muhammad petitioner is not responsible for the protracted trial which has not concluded as yet.
The framing of charge on 10-7-1993 cannot be ignored. No doubt he fired at the deceased Nawaz, but the law has to take its course. Hence on the said statutory ground I hold that Ashiq Muhammad petitioner is entitled to be admitted to bail.
6. I, therefore, accept this application and admit Ashiq Muhammad petitioner to bail in the sum of Rs.2,00,000 (rupees two lacs) with two sureties each in the like amount to the satisfaction of the learned trial Court with the direction to appear on every date of hearing during the trial failing which he may be got arrested.
7. By giving the preference to this case the trial Court is directed to conclude the trial during the month of June, 1995 under intimation to the Additional Registrar of this Bench.
8. Copy Dasti on payment of usual charges, if desired.