' At about 8-45 a.m. On 21-2-1996 Shabbir Hussain and his friend Muhammad Arshad received fire- arms injuries outside the Eid Gah of Mitran Wali within the area of Police Station Bamban Wala, District Sialkot. F.I.R. No,26 was lodged by Muhammad Arshad complainant at Police Station Bamban Wala at 10-45 a.m. On the same day in that regard for offences under section 324, 148 and 149, P.P.C. Subsequently, Shabbir Hussain succumbed to his injuries and section 302, P.P.C. Was added to the said F.I.R. It was alleged in that F.I.R. That Kashif alias Billu, the present petitioner, armed with a fire-arm, had caused an injury on the right Pindli of Muhammad Arshad complainant during that incident. The petitioner's co-accused Ashfaq was alleged to have caused a fire-arm injury on the chest of Shabbir Hussain deceased. Three other persons namely Mushtaq, Muhammad Ilyas and Adnan were also named in the F.I.R. As accused persons but they were stated to be empty-handed during that occurrence. The present petitioner was arrested in connection with this case on 26-3-1996. He applied for bail after arrest before the learned Court of Session, Sialkot but the same was refused by a learned Additional Sessions Judge, Sialkot on 14-4- 1998 on the merits of the case as well as on the statutory ground of delay in the trial. Hence, the present petition before this Court.
2. The learned counsel for the petitioner has canvassed for bail for the petitioner only on the statutory ground of delay in the conclusion of the petitioner's trial before the learned trial Court. He has maintained that the petitioner had been arrested in this case on 26-3-1996 and despite a lapse of about two and a quarter years not a single witness has been examined in the case against the petitioner. He has further submitted that the petitioner is not responsible for causing that delay in the trial in any manner and that the delay has been occasioned mainly due to the fact that the petitioner's co-accused Ashfaq has become fugitive from law and the case of the said Ishfaq has not so far been separated from the rest of the accused persons so as to enable the learned trial Court to proceed with the trial.
3. As against that the learned counsel for the State has vehemently argued that the petitioner does not deserve to be admitted to bail on the statutory ground of delay in conclusion of his trial because he is a hardened and desperate criminal inasmuch as he is already an accused person in F.I.R. No,60 of 1995 registered on 25-3-1995 at Police Station Bamban Wala, District Sialkot for offences under sections 337-H(ii), 337-A, 148 and 149, P.P.C. And in F.I.R. No,61 of 1995 registered at the same police station on 28-3-1995 for offences under sections 324, 148, 149 and 109, P.P.C. In this regard the learned counsel for the State has pointed out that concession in the matter of bail on account of delay in the conclusion of the trial envisaged by the 3rd proviso to section 497, Cr.P.C. Is not available to accused persons who fall within the category of hardened, desperate or dangerous criminals within the purview of the 4th proviso to section 497, Cr.P.C. He has, thus, opposed this petition for bail.
4. After hearing the learned counsel for the parties and going through the record it is noticed that the occurrence in this case had taken place on 21-2-1996 and the petitioner had been arrested in that respect by the local police on 26-3-1996. After completing its investigation a challah in respect of this case had been submitted by the local police on 6-1-1997 and so far there has been no progress in holding of the trial against the petitioner and his co-accused. It is not disputed before me that the statement of not a single witness has been recorded by the learned trial Court so far. It is also not disputed before me that one of the co-accused of the petitioner, namely Ashfaq, has been declared to be a proclaimed offender but his case has not so far been separated from the rest of the accused persons in this case so as to enable the learned trial Court to proceed with the trial of this case. It is, thus, quite likely that on account of this fact the trial of the petitioner may be further delayed.
5. I have gone through the F.I.Rs, of Cases Nos.60 and 61 of 1995 registered at Police Station Bamban Wala referred to by the learned counsel for the State so as to show that the petitioner falls within the category of a hardened, desperate or dangerous criminal. The allegation in case F.I.R. No,60 of 1995, dated 25-3-1995 registered at Police Station Bamban Wala was that although the petitioner was armed with a pistol in that incident yet he was alleged to have only given butt blows to one Muhammad Arif and that during that entire incident he had not fired even a single shot. In case F.I.R. No,61 of 1995 registered at the same police station on 28-3-1995 although the petitioner was allegedly armed with a .222 rifle yet no specific fire was attributed to him during that incident. It was alleged in that F.I.R. That the petitioner had indulged in general firing along with his co- accused in that case and had injured Muhammad Arshad, the complainant of the present case. I am also not unmindful of the fact that in both the said cases the trial of the petitioner has not so far been held and the truthfulness or otherwise of the allegations leveled A against the petitioner therein is yet to be established. In the backdrop of those two pending and unconcluded cases it is difficult to brand and dub the petitioner as a hardened, desperate or dangerous criminal so as to disallow him the benefit of the 3rd proviso to section 497, Cr.P.C. Needless to mention here that in the cases falling within the purview of the 3rd proviso to section 497, Cr.P.C., and in the absence of the 4th proviso to section 497, Cr.P.C. Being attracted to a case, an accused person becomes entitled to bail as a matter of right. I do not think that the material available against the petitioner so far is such that he may be disentitled to the right conferred on him in this respect by the 3rd proviso to section 497, Cr.P.C.
6. For what has been observed above the present petition is hereby accepted and the petitioner is admitted to bail in the sum of Rs,50,000 (Rupees fifty thousand only) with two sureties in the like amount to the satisfaction of the learned Ilaqa Magistrate of Police Station Bamban Wala, District Sialkot.