' This order shall disposed of Criminal Miscellaneous No,,681/B of 1998 and Criminal Miscellaneous No,,616/B of 1998.
The petitioners are involved in Case F.I.R. No,,447 of 1995, dated 19-9-1995, under sections 302/324/337-F(iv), 337-F(ii), 337-A(ii), 337-L(ii), 354 and 148/149, P.P.C. Registered at Police Station Saddar, Pakpattan, District Pakpattan Sharif, on the complaint of Rashid Ahmad alleging that he is resident of Chak No,,12/S.P. And that his maternal-uncle Muhammad Boota had kept earth in the street for the construction of his old house. A day before the occurrence, i,e, 18-9-1995, there had been exchanged of harsh words between the maternal-uncle of the complainant namely Muhammad Boota with Muhammad Ramzan, Illyas, Yagoob and Qasim Ali, etc. And that the dispute entered into scuffle. The objection was as to why Muhammad Boota had put the earth in the street. However, the same subsided by the intervention of the respectable of the village temporarily. Muhammad Ramzan felt aggrieved and he should threat that Muhammad Boota and his son Muhammad Afzal soon dealt with. On the day of occurrence, at about 6-00 a.m., the complainant got information that Muhammad Ramzan etc. Had made a programmer to fight with Muhammad Boota and to kill Muhammad Boota and his son Muhammad Afzal. The complainant received this information, proceeded to the house of his maternal-uncle Muhammad Boota to inform him in time, so that he may remain careful. But when he reached the house of Muhammad Boota, he came to know that Muhammad Boota and his son Muhammad Afzal had gone out for the call of nature. The complainant disclosed that information to Muhammad Akhtar son of Muhammad Boota and Niaz Ahmad son of Nawab (brother-in-law of Muhammad Boota) who had come to the house of Muhammad Boota from Mustafabad, Kasur, in connection with the construction of the house and proceeded with them towards Muhammad Boota and his son Muhammad Afzal towards the tube-well of Muhammad Boota. While they were a little away tube- well on Katcha Road, Muhammad Boota and Muhammad Afzal were going a little ahead. The complainant issued a call to inform that suddenly from the cotton crops Muhammad Ramzan, Ghaffar, Manzoor, Ali Muhammad and Ilyas armed with hatchet, Ismail and Jan Muhammad armed with Sota, Yagoob armed with hatchet, Sarwar armed with Sota, Hakim Ali armed with hatchet, Munawar and Punnu armed with Sota and Ayub and Shakoor armed with Sota came out with an ambush. Muhammad Ramzan and Ilyas raised Lalkara to kill Muhammad Boota and his son Muhammad Afzal there and then and teach them a lesson of yesterday insult. Muhammad Ramzan attacked on Muhammad Afzal from blunt side of his hatchet which hit on the back side of the head. Muhammad Ilyas also gave a hatchet blow from the blunt side to Muhammad Afzal which also hit on the backside of his head and he fell down. Manzoor gave hatchet blow to Muhammad Afzal which hit on his left arm, Yagoob also gave hatchet blow from blunt side which hit on the back side of the left ear. The remaining accused also caused injuries on various parts of his body. Sarwar gave Sota blow which hit Muhammad Boota on the head and Manzoor gave hatchet blow from blunt side which hit on his left leg. Muhammad Boota fell down and all the accused caused injuries with their respective weapons on various parts of the body of Muhammad Boota. Seeing the occurrence with their own eyes, Niaz Ahmad and Muhammad Aslam came forward to get them released. On that Jan Muhammad gave a Sota blow to Muhammad Akhtar on the right side of his face and Muhammad Ismail gave Sota blow on the left arm of Muhammad Akhtar. Hakim Ali gave Sota blow on the right leg of Muhammad Akhtar and. He fell down and all the accused with their respective weapons caused injuries to him and issued threat to them that in case they came forward they will also to be dealt with in the same coins. They did not go near due to fear. Meanwhile, Muhammad Anwar son of Muhammad Boota, Bashiran wife of Muhammad Boota and Shahina daughter of Muhammad Boota came on the spot and hearing of the fight and saw the incident with their own eyes and came forward to get the injured released. At that time Shakoor gave a Sota blow which hit Shahina on his right arm. Ghaffar gave hatchet blow from the sharp side which hit on the left hand of her while she raised her hand up to defend her. All the three accused gave Sota blow to Mst. Bashiran which hit on her left thigh. Muhammad Ilyas and Muhammad Ramzan drag Mst. Bashiran and Shahina by holding them from their hairs and insulted thein. At the time of occurrence, many people of the village gathered at the spot. The complainant Niaz Ahmad, Anwar and other people of the village beseeched the accused and got the injured released from the accused. The injured were brought to Hospital, Pakpattan Sharif on a Tractor Trolly. The Medical Officer gave medico-legal report. The condition of Muhammad Afzal was very precarious, he was sent to Lahore. While the remaining injured were admitted in Pakpattan Sharif Hospital. All the accused in furtherance of their common object intentionally killed Muhammad Boota and his son Muhammad Afzal.
2. The petitioners Muhammad Ramzan and Ilyas have moved this application for the grant of bail on the statutory ground that a period of over two years has passed and yet the trial in the said case has not been concluded.
3. The learned elbunsel for the State has opposed the bail application on 'the ground that it is a broad daylight murder and petitioners have been specifically named in the F .I.R. And recovery have been effected from them.
4. I have given due consideration to the valuable arguments of both sides.
5.The tentative appraisal of the record shows that the petitioners were arrested on 22-10-1995, which means a period of three years has been elapsed. The position of the trial is that challah was submitted on 10-10-1995 and since then case was adjourned for 60 times and only three witnesses have been examined out of the calendar of 18 witnesses. Only three adjournments consuming 45 days were due to the defiance out of 60 adjournments. The remaining 57 adjournments have been made without any fault of the accused/ petitioners.
6.The relevant provision of law on the point is contained in 3rd proviso of section 497(1), Cr.P.C., which is reproduced as under:-- "Provided further that the Court shall, except where it is of the opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf, direct that any person shall be released on bail-- ' who, being accused of an offence punishable with death has been detained for such offence for a continuous period exceeding ' two years and whose trial for such offence has not concluded."
' In the case of Zahid Hussain v. The State PLD 1995 SC 49 the Honorable Supreme Court has observed as under:-- "The right of an accused to be enlarged on bail under the 3rd proviso to section 497(1), Cr.P.C. Is a statutory right which cannot be denied under the discretionary power of the Court to grant bail.
The right of an accused to get bail under the 3rd proviso of section 497(1), Cr.P.C. Is not left to the discretion of the Court but is controlled by that provision. The bail under the 3rd proviso to section 497(1), Cr.P.C. Can be refused to an accused by the Court only on the ground that the delay in the conclusion of the trial had occasioned on account of any other person acting on his behalf. The bail under the 3rd proviso to section 497(1), Cr.P.C. Can also be refused by the Court if the case of the accused fell under the 4th proviso to section 497(1), Cr.P.C. In all other cases the Court must grant bail."
7. For the above said reasons, the petition for bail merits to be allowed subject to furnishing bail bonds in the sum of Rs,50,000 with one surety each in the like amount to the satisfaction of the trial Court.