Dr. GHOUS MUHAMMAD, J.- Bail is sought on behalf of applicant Habib Khan who is facing trial in Crime No. 15/1994 for an offence u/s. 302 Qisas & Diyat Ordinance, registered at P.S. Mehmoodabad, Karachi.
2. According to FIR Dr. Khalil Ahmed MLO Jinnah Hospital, Karachi informed SHO P.S. Mehmoodabad on 25-1-1994 at 0155 hours that dead-body of one Mst. Bushra Tabassum w/o Muhammad Haleem was brought by Mst. Fouzia Tabassum, who was shot dead by some unknown persons at her home.
On receipt of this information SI Muhammad Sharif went to Jinnah Hospital and recorded statement of Mst. Fouzia u/s. 154 Cr.P.C. 1n which she stated that she was residing with her mother in House No. 151, Azam Bastii. On the night of 25-1-1994 she alongwith her deceased mother and sisters were sleeping, when suddenly at about 0010 hours (midnight) some one knocked at the door and her deceased mother opened the door. Some one fired at her and she sustained injuries.
Her cries attracted the other inmates of the house and they saw. That the injured was lying in the door. Therefore, she took her mother to hospital but she succumbed to her injures on the way.
3. Bail is now sought mainly on the ground of statutory delay in conclusion of the trial. This point was taken up in the bail application before the learned trial Court and was dealt with in the following manner. While rejecting the bail application: ".... But in this case the record shows that there is other sufficient evidence against the applicant/accused. The reports of the police and jail authorities show that the applicant/accused is involved in many heinous criminal cases. The Government of Sindh vide Notification No. PR. S/8- 18/1994, dated 3-11-1996 ordered to conduct the trial of the applicant/accused in jail. The offence alleged against the accused is punishable with death of imprisonment for life or more then ten years. The accused is involved in an offence punishable with death who has been detained for such offence for a continuous period exceeding to years and whose trial for such offence has not concluded but the nature of the offence alleged against him and in the above circumstances it appears that he is a hardened, desperate or dangerous criminal hence this application is barred by the fourth proviso to section 497(1) Cr.P.C.
I therefore do not consider it proper to grant this application at this stage."
4. I have heard Mr. Miskeen Ellahi Shahzada, learned counsel for the applicant, Mr. Ch. Muhammad Rafique, Asstt. A.G. Perused the record, shows that the alleged incident took place on 25-1-1994 and the accused was arrested on 22-8-1994. No adjournment was sought by him. Therefore the period of to years expired on 21-8-1996. Charge was framed on 28-11-1994 but so far not a single witness have been examined out of total eight witnesses although, three witnesses have been given up by the prosecution.
5. The learned Asstt. A.G. While opposing the bail application submitted that it is a case of jail trial and the applicant is involved in a heinous offence, therefore his case is covered by the fourth proviso to section 497(1) Cr.P.C. There is no force in this submission. He is involved seven cases but according to learned counsel for the applicant he has been granted bail in all these cases by the learned trial Courts and he has also produced certified copies of the s. In other words this is the only case in which he is in custody. There is nothing on record to show that the applicant/accused is a hardened, desperate or dangerous criminal or that he is a previous convict.
6. Learned A.A.G, while supporting the impugned order submitted that the fact that the applicant is being tried in jail as per Government of Sindh Notification No. PR. S/8-18/94, dated 3-11-1996 is sufficient to indicate that he is a dangerous, desperate and hardened criminal. This submission is misconceived. There could be many reasons for holding trial Jail premisses. Therefore mere issuance of the above Notification is not sufficient. In such cases the prosecution must produce sufficient and convincing material to show that the case of the accused is hit by fourth proviso to section 497 (1) Cr.P.C. Merely because the Provincial Government has ordered for holding his trial within jail premises is no ground to deny him the benefit of statutory delay to which he is entitled as a matter of right. In may humble view the learned trial Court has passed the impugned order without application of judicial mine and the principles laid down by the Superior Courts. Therefore, following the case-law laid down in Jaggat Ram v. State (1997 SCM R 361), Zahid Hussain Shah v.
Ziaul Haq and others (1983 SCM R 72) the applicant is admitted to bail on his furnishing one surety in the sum of Rs. 3,00,000/- (Rs. Three lacs only! And PR bond in the like amount to the satisfaction of the learned trial Court. Cr. Bail Application No. 692/97 stands disposed of.