1. ' This is an application under section 497, Cr.P.C. Seeking grant of bail on the ground of delay in respect of Crime No,32 of 1995, Police Station Sijawal wherein applicants Nasrullah and Liaquat alongwith one absconding accused Manthar have been challaned for offence under section 17(3), Hudood (Offences Against Property) Ordinance.
2. ' The prosecution case is that the complainant Dr. Muhammad Rafique while going to Ratodero on 8-9-1995 from his village Arzi Bhutoo on motorcycle having Registration No,SP-1055 alongwith his friend Arbab Ali Lolai, around 12-00 noon was stopped by three persons who were armed with pistols. The complainant was forcibly relieved of the motorcycle and the cash and documents he was carrying. Around 12-30 hours on the same day, F.I.R. No,32 of 1995 was registered at Police Station Sijawal. The applicants and the absconding accused, it is further alleged, while going on the robbed motorcycle towards Ratodero, were intercepted by Ratodero police at Warrrah Branch Bridge but instead of stopping the motorcycle, they opened fire and tried to escape. It is further alleged that the applicant No,1 was arrested on the spot and a pistol, the motorcycle and the purse containing documents belonging to Dr. Muhammad Rafique were recovered from him. However, the applicant No,2 and absconding accused Manthar are alleged to have escaped. The applicant No,2 was subsequently arrested on 19-9-1995. The application for grant of bail on merits preferred by the two applicants was dismissed by the trial Court as well as by this Court. The applicants, therefore, moved another bail application on 14-10-1996 on the ground of lapse of stautory period prescribed under third proviso to section 497(1), Cr.P.C. Urging therein that the delay had been occasioned by the prosecution. On 14-12-1996 the trial Court dismissed the application for bail despite no objection extended by the prosecution.
3. ' The learned counsel for the applicants has urged before me that the applicants Nos.1 and 2 were arrested on 8-9-1995 and 19-9-1995 respectively. The applicants, according to reports from the jail authorities which were called by the trial Court, have conducted themselves satisfactorily and that they are not hardened, desperate and dangerous criminals. It is further urged that the applicants have not been convicted earlier or even involved in any other crime except the two offences which, essentially speaking, are part of a single incident. The two offences are admittedly alleged to have been committed on the same day and in series of the same offence namely snatching of the motorcycle. Besides, the applicants are involved in proceedings under section 110. Cr.P.C. In the submission of learned counsel for the applicants, the applicants do not, therefore, fall within 5th proviso to section 497(1), Cr.P.C. And are entitled to release on bail by virtue of third proviso thereto.
4. The learned counsel places reliance on majority view in the Full Bench Judgment of this Court in Shekil v. The State reported in PLD 1997 Kar. 172 wherein the following dictum has been laid down:-- "19. While keeping the above discussion in the backdrop. I am of view that the instant application it is not essential to go into the question of whether there exists a reasonable case against the accused since the case warrants pressing into service proviso 3 of section 497 (1) as the accused has been detained for more than a year, while he is charged with the offence not punishable with death and also the delay is not attributable to any act or omission of the accused or any other person acting on his behalf. In this respect I have been able to lay my hands on Shah Muhammad v. The State 1983 SCM R 341 and Rahim Baksh v. The State PLD 1986 Kar. 224 for the proposition that where the case of the accused clearly falls under the proviso No,3 of section 497 (1), the accused is entitled to bail as of right while no discretion of the Court is left intact."
5. ' The learned counsel for the applicants submits that the prosecution had stated no objection to grant of bail before the trial Court in view of the above background.
6. ' Mr. Abdul Fatah Mughal appearing for the State submits that the applicants are not entitled to benefit under the 3rd proviso to section 497(1), Cr.P.C. For the reason that they had clearly acted in a desparate manner committing robbery and then firing upon police who had signalled them to stop. The learned counsel, however, conceded to the legal proposition as is stated in the case of Shekil (supra).
7. ' Having considered the submissions and the record, I am of the view that the applicants cannot be treated to have indulged in repeated resort to violence or crime. The two offences under Crime No,32 of 1995 and Crime No,115 of 1995 are primarily part of the same incident and tentatively speaking, do not tender the applicants habitual offenders so as to classify them as hardened criminals. admittedly, no one was injured in the encounter that had allegedly taken place. The offences for which the applicants have been challaned do not carry death penalty and the applicants, therefore, can lawfully claim benefit of 3rd proviso to section 497(1), Cr.P.C. I have further been informed that despite submission of challan in the two cases during October, 1995, charge has not so far been framed against the applicants.
8. In the circumstances, I am of the view that the applicants are entitled to release on bail on the ground of delay in terms of 3rd proviso to section 497(1), Cr.P.C. And both the applicants are admitted to bail subject to furnishing two sureties. Each in the sum of Rs,2,00,000 with P.R. Bond in the like amount to the satisfaction of the trial Court.