' The petitioners stand charged under section 302/324/148/149/337, P.P.C. Vide F.I.R. No,78, dated 6- 7-1996 registered at Police Station Khichiwala Tehsil Fortabbas District Bahawalnagar.
2. Along with this Criminal Miscellaneous, another Criminal Miscellaneous No,360-B of 1998 has also been filed. As both the criminal miscellaneous petitions arise out of the same so these are being disposed of by this single order.
3. Briefly stated the facts are that Ghulam Nabi complainant and Khushi Muhammad are step- brothers. Noor Din father of Ghulam Nabi complainant, mutated land measuring 1 square in his name during his lifetime. No land was given to Khushi Muhammad. After the death of Noor Din, Khushi Muhammad along with his sisters challenged the said mutation of inheritance which was decided in their favour. Accordingly, Khushi Muhammad occupied the said land. The complainant filed a civil suit challenging the said decision which was decided in his favour on 1-7-1996 by the learned Civil Judge, Bahawalnagar. The complainant accordingly demanded the possession of the land from Khushi Muhammad and his sons Ghulam Qadir and others who asked the complainant to contact them on 6-7-1996 for the said purpose. Accordingly, on 6-7-1996 at about 7-00 a.m., the complainant along with Muhammad Sarwar, Muhammad Boota, Muhammad Sarwar son of Nazeera, Munawwar Hussain, Muhammad Iqbal and Muhammad Aslam went to the Dera of Khushi Muhammad and others. When they reached Killa No,12 of Square No,22, Ghulam Qadir, Abdul Majeed, Bashir Ahmad, Rafique Ahmad, Muhammad Akmal, Muhammad Afzal, Muhammad Akram.
Tariq, Muhammad Sadiq, Jala and 4/5 other unknown persons armed with their respective lethal weapons emerged out of maize crop and raising Lalkara attacked them resulting into the death of Munawwar Hussain, Javed and Muhammad Sarwar. Leaving the dead bodies on the spot, the complainant Ghulam Nabi made for the police station and lodged report.
4. The petitioners Bashir Ahmad, Muhammad Akmal, Muhammad Afzal and Tariq applied for bail on statutory ground which applications has been dismissed by the learned Additional Sessions Judge Bahawalnagar vide order, dated 19-10-1998. Similarly, petitioners Ghulam Qadir, Abdul Majeed, Muhammad Akram and Muhammad Aslam also applied for bail on similar ground but their prayer was also declined vide order, dated 20-4-1998. Against both these orders, these petitions have been filed.
5. Arguments have been heard and record perused.
6. The main contention of learned counsel for the petitioners is that in the instant case, occurrence took place on 6-7-1996 whereas challan was submitted on 13-9-1997, that charge was framed on 1-6-1998 and till today trial has not started. He submits that petitioners Abdul Majeed, Muhammad Akram and Aslam were arrested on 30-6-1997, 28-3-1997 and 6-9-1997 respectively, whereas Majeed, Bashir Ahmad, Muhammad Akram and Muhammad Aslam were arrested on 30-6-1997, 10-8-1996, 28-3-1997 and 30-12-1996 respectively. He frankly concedes that he does not press the applications to the extent of Majeed, Tariq, Muhammad Akram and Muhammad Aslam and presses the applications to the extent of Bashir Ahmad, Muhammad Akmal, Muhammad Afzal and Ghulam Qadir only. In the light of his submission, the application to the extent of petitioners Majeed, Tariq, Muhammad Akram and Muhammad Aslam stands dismissed.
7. So far as the case of Bashir Ahmad, Muhammad Akmal, Muhammad Afzal and Ghulam Qadir is concerned, his contention is that all these persons are in judicial lock-up for more than two years, as such they are entitled to the relief of bail under proviso 3rd to section 497, Cr.P.C. He has also submitted that since 1-6-1998 when the charge was framed, uptil today no progress in the case has been carried out. He argues that delay in the trial is neither attributable to the petitioners nor to any other person acting on their behalf. He, thus, submits that the petitioners may be admitted to bail on statutory ground and has relied upon Zahid Hussain Shah v. The State PLD 1995 SC 49 and Shaukat Ali v. Ghulam Abbas and others 1998 SCM R 228 as well as other authorities.
8. Consequently, both the petitions have been opposed by learned counsel for the State on the ground that delay in the trial has been occasioned on account of applications moved by the petitioners, as is evident from the order sheet. He next argued that as a result of attack by the petitioners, three persons were murdered on the spot and this conduct of the petitioners clearly shows that their case falls under proviso 4th to section 497, Cr.P.C. And they being desperate and hardened criminal are not entitled to the relief even on statutory ground. He, thus, submitted that the petitions be dismissed.
9. The relief of bail has been sought mainly on the ground of statutory delay in the disposal of the case. As per order sheet, challan was submitted on 13-9-1997 whereas charge was framed on 1-6- 1998. Thereafter, the case was adjourned to 17-6-998. And then to 29-6-1998. On both these dates, an application for adjournment was moved by the accused. From 29-6-1998, the matter was adjourned to 9-7-1998 when the Presiding Officer was on leave and consequently case was adjourned to 15-7-1998. On this date no P.W. Was present and the case was adjourned to 6-8-1998.
On this date, learned counsel for the accused/petitioners moved an application for consolidation of the case and accordingly, the matter was adjourned to 16-9-1998. On the said date, case did not proceed for want of time and it was adjourned to 26-9-1998. On 26-9-1998, the case did not proceed as the Presiding Officer had been transferred. Accordingly, the case was adjourned to 14- 10-1998 when it did not proceed as the Presiding Officer was on tour. Consequently, the matte was adjourned to 29-10-1998. On this date, cross-case had been received so 'the accused of the cross- case were summoned and the matter was adjourned to 19-11-1998 when it did not proceed on account of absence of learned counsel for the accused/petitioners. Thereafter the case was adjourned to 3-12-1998, 17-12-1998 and 14-1-1999. The case did not proceed on the said dates for want of prosecution evidence. Now even if the period of adjournments sought by the accused as well as their learned counsel is counted, it comes to about three months. The petitioners Bashir Ahmad, Muhammad Akmal and Muhammad Afzal were arrested on 30-12-1996. If the period of their detention is calculated, then it is clear that Bashir Ahmad, Muhammad Akmal and Muhammad Afzal are in jail for the last two years, three months and 22 days up to date whereas Ghulam Qadir is in jail for the last 2 years, 1 month and 2 days. As observed above, during this entire period, adjournments have been sought for about three months either by the accused themselves or their learned counsel acting on their behalf. This being the factual position, the relief of bail even on statutory ground can not be solicited by the petitioners Bashir Ahmad, Muhammad Akmal, Muhammad Afzal and Ghulam Qadir.
10. For what has been stated above, it is proved that there is no force in these petitions, which are accordingly dismissed.