' A case F.I.R. No,141 under sections 302, 324, 440, 148 and 149, P.P.C. Was registered against the petitioner and five others on 6-6-1995 at Police Station Sadar, Burewala, District Vehari on the allegation that on 6-6-1995 at 6-15 p.m. The accused persons armed with rifle and other fire-arms raided the agricultural land of the complainant party and took forcibly possession of the land which was subject-matter of civil dispute between the parties. As a result of fire-arm injury of Ghulam Hussain, the deceased, Khalid Mahmood was done to death.
2. Contention of learned counsel for the petitioner is that initially, four persons were nominated in the F.I.R. Namely Ghulam Mustafa, Ghulam Hussain, Muhammad Anwar son of Inayat Ali and Abdul Hameed (present petitioner) alongwith two unknown persons who were later on described as Abdul Razzaq and Lal Din, that later on, seven other persons, namely, Muhammad Irshad, Muhammad Hanif, Ghulam Muhammad Akhtar Ali, Muhammad Hussain, Zafar and Kala, were named at the instance of Suleman and Iqbal, who were not initially named in the F.I.R., that during the investigation Ghulam Mustafa, Muhammad Anwar son of Liaqat Ali and Lal Din were found innocent and were got discharged on 25-7-1995 and that out of the accused named above Ghulam Hussain, Muhammad Irshad, Muhammad Hanif and Ghulam Muhammad, Akhtar Ali are still absconders, that bail applications of the present petitioner were dismissed on 16-1-1995 and 14-1-1997 moved vide Criminal Miscellaneous No,1968-B of 1995 and Criminal Miscellaneous No,1913-B of 1996 respectively and lastly it was dismissed as withdrawn vide Criminal Miscellaneous No,560-B of 1997 on 10-7-1997.
3. The main contention of learned counsel for the petitioner is that the petitioner was arrested on 28-6-1995 and since then is in judicial lock-up, as such he is in jail for the last 2 years, 10 months and 10 days and trial has not concluded, that no injury either to the deceased or to any of the P.Ws.
Is attributed to the present petitioner, and the only role attributed to the petitioner is that he had arrived at the spot alongwith his co-accused and ploughed the land with a tractor, that even the presence of the petitioner is not proved from the evidence which has been collected by the prosecution, as he is alleged to be armed with a .30 bore pistol, but no empty of the same has been recovered from the place of occurrence that the petitioner can only be refused the relief of bail under third proviso if the delay has been occasioned by an act or omission of the accused or any other person acting on his behalf and relies upon Sher Ali alias Sheri v. The State (1998 SCM R 190), that similarly delay in conclusion of the trial caused by one co-accused cannot disentitle other co-accused, as held in Muhammad Sadiq and 2 others v. The State 1996 PCr.LJ 1440) and Muhammad Yousaf v. The State (NLR 1997 Criminal 596). He, thus, submits that all these facts make the case of petitioner fully covered under third proviso to section 497(1), Cr.P.C., as such petition may be accepted.
4. Conversely, the contentions raised by the learned counsel for the petitioner have been repudiated by the learned counsel for the State assisted by the complainant. It is contended that presence of the petitioner stands proved and recovery of .30 bore pistol from his possession shows that he had come on the spot with the intention to commit the murder of the deceased that delay in the trial has occasioned on account of adjournments sought by him as such he cannot get its benefit, as provided under proviso (3) to section 497(1), Cr.P.C., that similarly some of the co- accused are absconders as such delay in the trial has occurred, that all these facts disentitle him to the relief sought by him.
5. The part assigned to the present petitioner is that he had ploughed the land with a tractor regarding which interim injunction has been issued by the Civil Court. He has been shown to be armed with a pistol at the relevant time.
' According to prosecution, the said pistol was recovered from his possession on 13-7-1995 whereas he was arrested on 28-6-1995. The recovery of alleged pistol in no way connects the petitioner with the commission of this offence as no empty of the said pistol has been recovered from the spot.
6. The main ground urged for the release of the petitioner is the expiry of statutory period as he was arrested on 28-6-1995 and since then is in judicial lock-up, as such, he has been in jail for 2 years, 10 months and 10 days and trial has not yet concluded. Thus, he is entitled to the relief of bail as held in Sher Ali alias Sheri v. The State (1998 SCM R 190). A perusal of the order-sheets clearly shows that except a few adjournments none of the adjournments had been sought by the present petitioner, as such, the delay in the trial cannot be attributed to the present petitioner. Even if it is presumed that delay has been caused on account of the fact that some of the accused are still absconders even then an act or omission of any co-accused cannot deprive of bail under section 497 (1), provisos 3rd, Cr.P.C. As held in 1996 PCr.LJ 1440), NLR 1997 Criminal 596 (supra). Again even if the accused had been obtaining adjournments for one reason or the other, but the fact remains that the detention of accused has exceeded by all means the period of two years and trial has not yet concluded, even then the accused is entitled to the relief of bail as held in Muhammad Riaz v.
The State (1998 PCr.LJ 320) Supreme Court AJ&K).
7. The upshot of the above discussion is that the delay in the trial has not been occasioned on account of any act or omission on the part of the petitioner, so he is entitled to the relief of bail.
Consequently, the petition is accepted and the petitioner is ordered to be released on bail subject to his furnishing bail bonds in the sum of Rs,1,00,000 (Rupees one lac only) with two sureties each in the like amount to the satisfaction of the Deputy Registrar (J) of Multan Bench. The file be sent back to the trial Court immediately.