KHAWAJA MUHAMMAD SAEED, CJ.- The supra-titled appeal has been field against an order passed by District Court of Criminal Jurisdiction Pallandri, dated 29-3-1997, whereby the petitioners were denied the concession of bail in a case under Sec. 5 IPLA read with sections 307/147, 148/149, 109/114, 341/427. A.P.C. Registered against them.
2. Precisely the facts of the prosecution case are that deceased Altaf Hussain s/o Sher Dill was travelling in his jeep on Band Pallandri Road alongwith 4 other persons, when ai a place known as Dhara Suniari. The accused-persons namely Mazhar Iqbal and Muhammad Khaliq s/o Naw ab Khan. Javaid s/o Walait Khan, Ghulalfi Rasool so Ghulab Khan. Said Hassan s/o Khan Muhammad Kaloo s/o Lai Khan. Zamir Hussain s/o Ghulam Rasool, Umer Khan s/o Noor Muhammad, Muhammad Taj s/o Baloch Khan. Muhammad Akram s/o Noor Muhammad, Nasir s/o Muhammad Khaliq and Jangir s/o unknown, suddenly opened fire on his jeep. Due to this indiscriminate firing of the above referrer persons, he alongwith his companions Abid Hussain, Amjad Hussain and Muhammad Munir died on the spot while Muhammad Taj his companion was seriously injured, who later o, succumbed to his injuries, lt is alleged that in past, three sons of appellant (Ghulam Rasool) were murdered. Deceased Altaf Hussain and his relatives were facing accusation in the Additional Court of Criminal Jurisdiction Pallandri. The appellant Ghulam Rasool. Who was complainant in that case and deceased Altaf Hussain decided to settle that case through compromise. On the day of the present incident the compromise was settled by the parties.
According to prosecution, Ghulam Rasool was not serious in the compromise. He therefore, had engaged the senders of certain dangerous and desperate criminals from Pakistan for the murder of Altaf Hussain and others. After receiving mone in the open Court as 'Dieat' amount for the murder of his three sons, the presence occurrence took place in furtherance to the conspiracy which appellant Ghulam Rasool had cooked alongwith other accused persons.
3. Previously, the appellants sought the concession of bail in the case on merits, hut the relief was declined to them on the ground that in. The light of the material, collected during the investigation by the police there were prima fade, reasonable grounds to believe that they were involved in the offence of murder.
4. This the the concession of bail was sought by the accused-appellants s-n the ground of statutory delay as they were behind the bare continuously for a period exceeding two years and their trial is yet to conclude. The relief was refused to them in the light of fourth proviso, recently incorporated through amendment in Sec. 497 Cr.P.C. hence the present appeal.
5. Sardar Iqbal Hussain Khan leamed counsel for the appellant argued that his clients are behind the bars for a period exceeding two years and their trial has not yet concluded. According to him, the delay cannot be attributed for any at of his clients. According to him, his clients are not involved in any other case, as such, they were wrongly declined the concession of bail on the ground of statutory delay be applying principle contained in fourth proviso of section 497 Cr.P.C. In support of his contention, he relied upon the following authorities.
(1) P.L.D. 1992 Shariat Court 11 AJ&K.
(2) P.L.D. 1991 Peshawar 174.
(3) PLD. 1987 Karachi 667.
(4) PLD. 1988 Karachi 78.
(5) P.L.D. 1986 Karachi 224/646.
(6) PLD. 1990 Supreme Court 934.
6. On the other hand, Sardar Abdul Hamid Khan leamed counsel for the complainant submitted that appellants are responsible for the murder of five innocent persons. One of them, in passed settled the dispute of the murder of his son's with deceased Altaf Hussain and received Ten Lac rupees from him in the open Court. But prior to that, he hired services of some criminals from Gujrat (Pakistan) and with their convenience, murdered five innocent persons. According to him, about nine persons have absconded, lt cannot be ruled out that if these accused persons are released on bail, they too might abscond. He further argued that only two important prosecution witnesses out of rest of witnesses shall be examined in this case. Both these witnesses were present but due to non-availability of the record with the trial Court, their evidence was not recorded bn the last date of healing. According to die learned counsel, the record of the case was summoned by this Court in the appeal filed by the appellants for their release on bail. He supported the order under appeal passed by the trial Court, whereby bail was declined to the present appellants. He also relied upon the following authorities:
(1) 1996 S.C.R. 238.
(2) 1988 Pakistan Criminal Law Journal 703.
(3) 19 Pakistan Criminal Law Journal 22.
(4) 1997 M.L.D. 2016.
(5) 1994 Pakistan Criminal Law Journal 308.
(6) 1997 Pakistan Criminal Law Journal 1510.
(7) P.L.D. 1975 Lahore 530.
7. I have given care fol consideration to the respective contentions raised by die learned counsel for the parties.
8. Far this case, foul is urged on the ground of statutory delay by the appellants for die reason dot they ate detained continuously for a period exceeding two yean, bat their trial has not yet concluded. They, therefore, wants to take the benefit of 3RD proviso recently add in section 497 Cr.P.C, through amendment.
9. There is no dispute that the appellants are behind the ban fin a period exceeding two yean. It is also admitted fact that they have no hand in the delay of their trial, hi this case, however, even prosecution cannot be foamed fin the delay of die trial. No hard and fast rale is laid down in bail matters, as such, there is no need to discuss the judgments which have been relied upon by die leamed Counsel fin the parties hi this case fin and against their respective contentions. All these cases are distinguishable on facts. The 3* proviso has been added ln Section 497 Cr.P.C., to extend benefit of bail of those accused-persons whose trial has not been concluded within a period of two yean and where delay amounted to abuse of process of Courts. In the present case, the conduct of the appellants cannot be ignored. Prima fade, the rote attributed to them can safely labelled diem to be die dangerous and desperate criminals, within die contemplatin of TH proviso of Section 497 Cr.P C. The trial Court has, therefore, committed no error white refusing them the concession of bail.
Nine accused-persons, in this case ate absconders. The apprehension of the leamed counsel for the complainant, therefore, is not without substance that if appellants are released on bail, they also might abscond. The appeal is therefore, without force as such is rejected.
10. In the light of the above discussion, it appears appropriate to direct the trial Court to expedite the trial of the appellants. The observations recorded in this order are tentative in nature. These therefore, shall be ignored white passing due final order in the case.