' The petitioners with 24 others are involved in the case, F.I.R. No,15 of 1995, registered at Police Station Sargodha Cantt. Under sections 302/ 324/ 148/ 149/ and 109, P.P.C. At the instance of Faiz Ahmad son of Sher Muhammad on the allegations of committing murder of Inayat Khan son of Roshan and causing injuries to P.Ws., Ghulam Ali and Munir alias Babu.
2. The allegations in the F.I.R. Are that the petitioners and their co-accused armed with Klashnikoves and other fire-arms, attacked Inayat Khan and other P.Ws. Who were going to the Court of Session, Sargodha, in front of the house of Muhanunad Sadiq Gujjar, near road-crossing which resulted in the death of Inayat Khan and injuries to other P.Ws.
3. The petitioners were arrested on 22-2-1995 and since then are behind the bars. In the first round of the bail matter, the present petitioners filed application, Criminal Miscellaneous No,2623-B of 1995 for their bail in this Court which was dismissed on 23-7-1995 observing as follows:-- "We have heard the learned counsel for the parties and have perused the record. The petitioners were named in the F.I.R. They were armed with fire-arms and participated in the commission of offence. Prima facie, there is sufficient evidence to connect the petitioners in the commission of offence. No ground for the grant of bail. Dismissed."
4. Subsequently, the petitioners moved another bail application before the learned trial Court on the statutory ground as more than two years had elapsed since their arrest yet the trial had not concluded. This application was dismissed by the learned Sessions Judge/Special Judge (Suppression of Terrorist Activities) Sargodha Division, Sargodha vide his order dated 8-4-1997.
5. The petitioners have now filed this second application for bail. Learned counsel for the petitioners, in view of the aforesaid order of this Court dated 23-7-1995, presses this application only on the statutory ground. He submits that more than two years have elapsed since the arrest of the petitioners and the trial having not been concluded, the petitioners are entitled to concession of bail in accordance with Proviso III to section 497, Cr.P.C.
6. We enquired from the learned Sessions Judge, Sargodha and also from the learned Assistant Advocate-General, Punjab as to the present position of the trial. It is admitted that the trial has not concluded though prosecution evidence is partly recorded. It is explained by the learned A.A.-G.
That on abolition of the Special Court, the case was sent for trial to the learned Sessions Judge, Sargodha but subsequently, on the establishment of the Special Courts under the Anti-Terrorism Act, 1997, the case is sent back to the learned Special Judge, Sargodha for trial. The learned Law Officer informed that the learned Special Judge, Sargodha has resigned and at present no Special Court is functioning within the Sargodha Division, therefore, the trial is held in abeyance for the time being.
7. To elaborate his submission, learned counsel for the petitioners contends that the petitioners are entitled to concession of bail under Proviso III to section 497, Cr.P.C. On the statutory ground, keeping in view the following facts and circumstances:- ' Petitioners are not involved in any other case; petitioners are not desperate and hardened criminals; petitioners are not previous convicts; petitioners have not acted in a cruel and reckless manner in the commission of the alleged offence and finally, the petitioners are not responsible for the delay in the conclusion of the trial.
' The learned counsel, however, admitted that co-accused Sarfraz is still absconding. But relying on Shouki alias Shoukat and others v. The State (1984 SCM R 613) and Wazir Khan v. The State (SCM R 1983 427) the learned counsel for the petitioners submits that on the basis of absconsion of the co- accused, concession of bail cannot be refused to the present petitioners who are not responsible for his absconsion and delay in conclusion of the trial.
8. With regard to the grant of bail of statutory ground under Proviso III to section 497, Cr.P.C., the learned trial Court has recorded findings of fact in his order dated 8-4-1997, which are to the following effect:-- ' "Petitioners are members of a Gang and have association/relations with the accused persons of F.I.R. Nos.74 and 75 under section 302, P.P.C, registered at Police Station Kotmomin and F.I.R. No,310 registered at police station Lathan, District Jhang. Since these facts go a long way to show that the petitioners are desperate and hardened criminals, therefore, concession of bail cannot be shown to them."
9. The teamed A.A.G. Submits that the petitioners are not entitled to concession of bail even on statutory ground in view of the fact that the petitioners were armed with Klashnikoves and other fire-arm and have committed the offence in front of the Court of Sessions at Sargodha while the victim party was going to attend the Sessions Court.
10. We have considered the elaborate arguments of the learned counsel for the petitioners, but are unable to agree with him. In view of the findings recorded by the learned Special Judge in his order dated 8-4-1997 that "the petitioners are desperate and hardened criminals", we are of the considered view that the petitioners are not entitled to concession of bail in the light of Proviso IV to section 497, Cr.P.C. Even on the statutory ground, which reads as A under: - ' "Provided further that the provisions of the third proviso to this subsection shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal or involved in terrorism."
11. The upshot of the above discussion is that this application fails and is hereby dismissed.