' The petitioner is involved in a Case F.I.R. No,102 of 1996, dated 20-7-1996 for offences under section 302/34, P.P.C., registered at Police Station Munawan, District Lahore on the complaint of Master Habib Ullah alleging that the complainant is a Teacher in Mughalpura and on 20-7-1996 at about 12-00 Clock in the night he was sleeping in his house that his nephew Wajid Ali aged about 8/9 years came to his house and informed that his mother Mst. Shamim and Karamat Ali Kumhar (the present petitioner) disputed with and made him unconscious and taken him away on a cart. On that information, the complainant got his brother Ashiq Ali also awaken and reached the house of Muhammad Malik and found that his brother Muhammad Malik and his wife Mst. Shamim were not present in the house. The complainant and his brother Ashiq Ali went out in search of Muhammad Malik and Mst. Shamim. On the way, Muhammad Afzal son of Muhammad Siddiq, Cast Jat, resident of the village, sitting in a tractor met him. They all embarked upon the tractor and when they reached on Kacha Path going towards Mehmood Booti Octroi, 6/7 acres on the northern side of village Lakho Dher, they saw that Mst. Shamim and Karamat Ali were dragging down Muhammad Malik from the cart. Within the sight of the complainant party Mst. Shamim with her .12 bore gun and Karamat Ali with his carbine started firing at Muhammad Malik who became seriously injured on account of the said firing and died at the spot. The complainant party being empty handed could not catch the accused, who ran away from the spot issuing firing. The incident was seen by the complainant, Ashiq Ali and Muhammad Afzal in the light of the tractor.
2. The motive behind the incident was that Mst. Shamim and Karamat All had illicit relations, that had come to the knowledge of Muhammad Malik. Both i,e,, Mst. Shamim and Karamat Ali in furtherance of their common intention with a view to remove Muhammad Malik from their way committed his murder.
3. The petitioner was arrested on 5-8-1996 and was challaned with the co-accused Mst. Shamim in order to face trial for the murder of Muhammad Malik.
4. The petitioner had earlier moved the Trial Court for bail on statutory ground but the same was dismissed on 12-1-1999 with the following observations:--- "--The record reveals that on more than one occasions a protest was made on behalf of the prosecution that the case was being delayed on the part of the defence and the prosecution witnesses, who were regularly attending the Court were not allowed to be examined. It is, thus, evident that if despite lapse of more than two years of the arrest of petitioner, the case has not yet concluded, the fault lies on the part of the accused persons. Since formal witnesses and the Investigating Officer remain to be examined, therefore, it is not the proper time for the grant of concession of bail to the petitioner on statutory ground. In similar circumstances in Gulzar Ahmad etc. v. The State (1995 PCr.LJ 1494) and Muhammad Akram v. The State (1996 PCr.LJ 1996) bail was declined."
5. The bail is now pressed on the ground that the petitioner was arrested on 5-8-1996 and a period of more than two years has elapsed but his trial has not concluded so far and, as such, he has become eligible and entitled for grant of bail on account of statutory delay. It is further submitted that the delay does not lie on the shoulders of the petitioner and, in fact, the fault lies on the shoulders of the co-accused Mst. Shamim as her learned counsel has been unable to conduct cross-examination of witnesses on a number of dates and that for the fault of the co-accused the petitioner cannot be denied his right available to him on account of statutory ground. It is further submitted that even if there was some delay on the part of counsel of the co-accused now 7 months more have passed but the trial has not been concluded.
6. On the other hand, learned counsel for the State has submitted that only formal witnesses are to be examined, bail cannot be granted at this stage. He could not deny that the trial has not concluded despite the lapse of nearly two years and seven months. He also admitted that the co- accused had already been granted bail. The plea of the accused being hardened desperate and dangerous criminal or being involved in terrorism in the matter had also been not taken by the respondent.
7. I have given due consideration to the valuable arguments on both the sides.
8. Admittedly, the petitioner was arrested on 5-8-1996. The trial has not yet concluded despite lapse of two years 6 months and 28 days. The co-accused has been granted bail by this Court on statutory ground, there is no fault on the part of the present petitioner in the delay of trial and the delay caused by the co-accused cannot be made a ground against the petitioner. It is also admitted that the accused is not hardened desperate and dangerous criminal or involved in any act of terrorism.
9. The law on the point is contained under the 3rd proviso to section 497, Cr.P.C., which is reproduced for ready reference:--- "497. When bail may be taken in case of non-bailable offence.---(1) When any person accused of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years: ' Provided that the Court may direct that any person under the age . Of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail: Provided further that a person accused of an offence as aforesaid shall not be released on bail unless the prosecution has been given notice to show-cause why he should not be so released; ' Provided further that the Court shall, except where it is of 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--
(a) who being accused of any offence not punishable with death has been detained for such offence for a continuous period exceeding one year and whose trial for such offence has not concluded; or
(b) 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."
10. The Hon'ble Supreme Court of Pakistan in the case of Zahid Hussain Shah v. The State (PLD 1995 SC 49) observed that the grant of bail under the third proviso to section 497(1), Cr.P.C., is a statutory right which cannot be denied under the discretionary power of the Court and that the said right is not left to the discretion of the Court but is controlled by the said proviso and that under the said proviso bail can be refused only if in the opinion of the Court the accused is hardened, desperate or dangerous criminal or is involved in terrorism. This precedent of the Hon'ble Supreme Court was confirmed in Abdul Rashid v. The State (1998 SCM R 897).
11. Under the light of the above legal position and the guidance, available from the judicial precedent, a right has accrued to the petitioner under the law. As such the petition is allowed and the petitioner is directed to be released on bail provided he furnishes bail bonds in the sum of Rs,50,000 (Rupees fifty thousand) with two sureties in the like amount to the satisfaction of the learned Trial Court.