1. ' The applicant Amin has moved this application for bail in a case registered under sections 302, 364, 342, 147, 148, P.P.C. And 13(d), Arms Ordinance.
2. ' The facts forming the background of this application are that on 13-101992 complainant Pario, his nephews Abdul Sattar and Hairdin and Sultan were grazing their cattle in jungle. At about 4-00 p.m.
3. Nine culprits appeared there who were identified to be Soomar, Khair Bux, Arz Muhammad, Muhammad Nawaz, Daglo, Kallu, Abdul Rasool, Adam and Ali Murad. All of them were having guns.
4. They tied complainant Paryo, Hairdin and Abdul Sattar with clothes. Accused Soomar dragged Abdul Sattar and fired at him who fell down. Khair Bux also fired at him which too hit him. Abdul Sattar died on the spot. The accused took away Hairdin with themselves. Thereafter, the complainant informed his Zamindar Ahmed Khan Bhangwar and on his advice filed the report.
5. Hairuddin was released later on and he implicated the applicant as one of the culprits who had kept him in detention.
6. ' Learned counsel for the applicant contended that his name does not find place in the F.I.R. And that he is not responsible for the murder of Abdul Sattar or the abduction of Hairuddin. According to him abductee Hairuddin who was examined after more than a month of the incident has implicated the applicant alongwith co-accused Pir Bux, Mehrullah and Moula Bux for confining him in a house. He has stated that accused Pir Bux, Mehrullah and Moula Bux have been allowed bail by the trial Court on merits. Learned counsel has submitted that the applicant is in jail since 10-10-1994 but the trial has not even started as yet.
7. ' Mr. Sher Muhammad Shar, learned Assistant Advocate-General appearing for the State has raised no objection to the grant of bail to the applicant.
8. ' Since this application is pressed on the ground of statutory delay, a question arose whether the benefit permissible under third proviso to section 497, Cr.P.C. Would be withheld as it transpires from the perusal of bail order passed by the trial Court that the applicant stands convicted for an offence under sections 307, 353, 148, 149, P.P.C. And 13(d), Arms Ordinance. In this connection learned counsel has placed reliance on the cases of Mumtaz Ali and 13 other's v. The State 1992 PCr.LJ 2325 and Shamoon Jatoi v. State 1996 PCr.LJ 783. In the latter case a Division Bench of this Court has granted bail to an accused who had been convicted to imprisonment for 7 years for an offence under section 307, P.P.C. And his appeal was also dismissed by this Court. The said accused was granted bail on the ground of delay in the proceedings pending against him before Special Court S.T.A.
9. I have given due consideration to the submissions made by both the Advocates. Admittedly, the applicant has by now remained in custody for more than 3 years and the trial has not commenced as yet. Co-accused Soomar and Khair Bux who were responsible for murder of Abdul Sattar and abduction of Hairuddin have been released by the Trial Court on the ground of delay in the trial.
10. The present applicant is not named in the F.I.R. And the allegation is that he was responsible for detaining Hairuddin after he had been brought from the scene of offence.
11. ' The case-law reported Shamoon Jatoi v. State 1996 PCr.LJ 783 is also relevant with the facts of this case. In the above case a Division Bench of this Court had granted bail to the accused under third proviso to section 497, Cr.P.C. Although he was convicted for an offence under section 307, P.P.C. To suffer R.I. For 7 years and 10 cases were pending against him. The trial Court while declining the bail to the applicant has not considered the fourth proviso to section 497, Cr.P.C. In its correct perspective because simplicitor conviction of an accused in any offence would not deprive him of the bail being granted on the ground of delay in conclusion of the trial. In order to bring the case of a person within the four corners of the fourth proviso it is essential that he should be a previously convicted offender for an offence punishable , with death or imprisonment for life. Obviously the applicant was convicted for an offence under section 324, P.P.C., maximum punishment for which is 10 years. Hence, such conviction of the appellant will not come in his way for being released on C bail under third proviso. There is no finding against the applicant that he is dangerous, desperate or hardened criminal or involved in terrorism.
12. ' For the reasons stated above, I direct that the applicant be released on bail on furnishing one surety in the sum of Rs,2,00,000 (two lacs) and P.R. Bond in the like amount to the satisfaction of the Trial Court.