' An F.I.R. No,206 of 1991 was registered against the present petitioner and 15 others at Police Station Uoh Sharif on 3-6-1991 under sections 302, 324, 148, 149, 109, 120-B, P.P.C. On the statement of one Ghulam Sadiq son of Ghulam Sarwar in which it was alleged that the petitioner and his co- accused while variously armed with deadly weapons including Klashnikov etc., after hatching a conspiracy and forming an unlawful assembly attacked the complainant party and did away with four of them, namely, Abdul Aziz, Ghulam Akbar, Ata Muhammad and Saeed Ahmad and seriously injured Qurban Hussain alias Allah Bachaya and Jind Wadda alias Baggo Khan.
2. After the completion of necessary investigation by the police a challan was submitted against eleven of the accused before the then Judge Special Court for Speedy Trial, Multan. The petitioner and five others were declared as proclaimed offenders. Resultantly, however, all the eleven accused were acquitted of the charges against them by the learned Judge Special Court for Speedy Trials, Multan by means of his judgment dated 25-9-1991 and they were directed to be set at liberty at once if not detained in any other case. An appeal was preferred by the State against their acquittal before the Supreme Appellate Court but without success. The Supreme Appellate Court finding no merit in the appeal dismissed the same by means of detailed judgment dated 20- 11-1991.
3. It was much later on 19-10-1993 that the present petitioner was arrested and was lodged in the Central Jail, Bahawalpur. It is claimed by him in this application for grant of post arrest bail under section 497, Cr.P.C. That his case remained untraced for a pretty long time. His application for bail moved before the Sessions Judge, was, however, dismissed by the learned Additional Sessions Judge, Bahawalpur on 5-10-1996 after holding that he was not entitled to the concession of bail under clause (B) of Second Proviso to subsection (1) of section 497, Cr.P.C. Having been fugitive from law for more than two years. The petitioner has, therefore, come to this Court seeking bail mainly on the statutory ground and also claiming that since Act of Special Courts for Speedy Trials stands repealed and the trial has not yet commenced nor is there any probability of conviction being recorded in his case he is entitled to the concession of bail.
4. I have heard both the sides at some length. There is no denying the fact that all the eleven co- accused of the petitioner who were challaned and made, to face trial were consequently acquitted by the learned Judge, Special Court of Speedy Trials, Multan as the prosecution had failed to establish its case against them. The appeal filed by the State against their acquittal was also found without merit and was dismissed by the Supreme Appellate Court. It is also not controverted that the petitioner has been behind the bars ever since his arrest on 19-10-1993 and by virtue of Ordinance LXIV of 1995 (Special Court for Speedy Trials (Repeal) Ordinance, 1995), the Special Courts stand abolished and the commencement of trial of the petitioner is not yet in sight. It has been held in Zahid Hussain's case (PLD 1995 SC 49) as under:-- "The right of an accused to be enlarged on bail under the 3rd proviso to section 497(1), Cr.P.C. Is a statutory right which cannot be denied under the discretionary power of the Court to grant bail.
The right of an accused to get bail under the 3rd proviso of section 497(1), Cr.P.C. Is not left to the discretion of the Court but is controlled by that provision. The bail under the 3rd proviso to section 497(1), Cr.P.C. Can be refused to an accused by the Court only on the ground that the delay in the conclusion of the trial had occasioned on account of any act or omission of the accused or any other person acting on his behalf. The bail under the 3rd proviso to section 497(1), Cr.P.C. Can also be refused by the Court if the case of the accused fell under the 4th proviso to section 497(1), Cr.P.C. In all other cases the Court must grant bail."
5. In has not been shown or suggested by the State that the petitioner is a previous convict or is a hardened, desperate or dangerous criminal or is involved in terrorism and that, as such, his case is covered under the 4th proviso to section 497(1), Cr.P.C. The petitioner has, therefore, a statutory right to be enlarged on bail and it cannot be denied to him only because he had been fugitive from law, because no such condition/prohibition has been laid in the relevant law.
In these circumstances, this application is accepted and the petitioner is enlarged on bail subject to his furnishing bail bonds in the sum of Rs,2,00,000 (Rupees two lacs) with two sureties in the like amount each to the satisfaction of the Sessions Judge, Bahawalpur.