' The petitioners seek post-arrest bail in a case vide F.I.R. No, 346, dated 30-9-1996 under section 302/324/148/149, P.P.C. Registered at Police Station Thikriwala, District Faisalabad.
2. Allegation against the petitioners is that they alongwith 8 others in furtherance of their common intention committed the murder of Shahid Ali son of the complainant and murderous assault upon Zahid Ali another son of the complainant.
3. The petitioners applied for bail after arrest which relief has been declined by the learned Additional Sessions Judge, Faisalabad, vide order, dated 1-7-1999.
4. Contention of learned counsel for the petitioners is that occurrence took place on 30-9-1996 at 9.00 p.m. Whereas F.I.R. Was lodged on the same day at 5.00 p.m., that as per contents of the F.I.R., the petitioners alongwith 8 others have been nominated for causing the murder Shahid Ali and murderous assault upon Zahid Ali, that Ghulam Shabbir petitioner has been attributed the role of causing murderous assault upon Zahid Ali whereas Ehsan Ahmad petitioner has been assigned the role of causing the murder of the deceased Shahid Ali, that no part has been attributed to Shahbaz petitioner, that the petitioners applied for bail in this Court which was refused vide order dated 4- 8-1997 that they approached the apex Court of the country but failed to seek the said relief as is evident from the order, dated 21-12-1997, that initially the case was pending in the Court of Suppression of Terrorist Activities and vide order, dated 12-5-1999 the same has been transferred to the ordinary Court, that a writ petition was filed against the said order which was dismissed, that no other case is pending against the accused/petitioners and the observation of the learned Additional Sessions Judge to that effect is factually wrong, that the petitioners are of the age of 16/17 years and their further detention is uncalled for, that the petitioners were arrested on 3-12- 1996 and in spite of lapse of more than 2-1/2 years, the trial has not concluded and that as such the petitioners are entitled to the relief of bail under the third proviso to section 497(1), Cr.P.C. In support of his contentions, he has relied upon Shaukat Ali v. Ghulam Abbas and others 1998 SCM R
228. Mounder and others v. The State 1988 SCM R 113 and Zahid Husain Shah v. The State PLD 1995 SC 49.
5. In rebuttal, the impugned order has been supported by learned counsel for the State assisted by learned counsel for the complainant. It is further contended that pistol has been recovered each from Ghulam Shabbir and Shahbaz and that name of other accused has been placed in column No,2 of the challan, that delay in the trial has been due to institution of writ petitions and their disposal, that now vide order in W.P. No, 9409 of 1999, dated 26-5-1999, the trial Court has been directed to conclude the trial and decide the case within a period of six months and that the said period has not expired, as such the instant petition is devoid of any force and merits dismissal.
6. Instant petition has mainly been filed on the ground of delay in disposal of case. The stand of learned counsel for the petitioners is that the petitioners were arrested in December 1996 and in spite of lapse of two years and 8 months, the trial has not concluded and as such the accused/petitioners are entitled to the relief of bail which right has been conferred upon them under third proviso to section 497(1), Cr.P.C.
7. There is no doubt that the accused/petitioners were arrested during December, 1996 but challan was submitted in Court on 25-4-1997. Out of the accused/ petitioners Ghulam Shabbir has been attributed the role of murderous assault upon Zahid Ali whereas Ehsan Ahmad accused/ petitioner has been assigned the role of causing death of Shahid Ali deceased. Shahbaz accused/petitioner has not been assigned any specific role except Lalkara but his presence on the spot duly armed with pistol alongwith his co-accused clearly shows that he shared a common intention with them.
The delay in the disposal of case is on account of the fact that initially the case had been sent up in the Court constituted under the Suppression of Terrorist Activities Act, 1975 and now the case has been referred to the ordinary Court for trial. A specific direction for the disposal of case within a period of six months has been passed vides order, dated 26-5-1999 in W.P. No,9409 of 1999. The said period has not so far expired.
8. There is no doubt that third proviso to section 497(1), Cr.P.C. Provides that accused is to be released on bail if the trial has not concluded within the specified time given therein. However, it is fact that the trial of this case has not concluded due to pendency of writ petitions filed in the instant case. It has been observed by the Apex Court of the country in Shaikh Liaqat Hussain and others v. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs Islamabad and others PLD 1999 SC 504 that: "Third proviso to section 497 of the Criminal Procedure Code is also substantially contributing towards the delay in the disposal of criminal cases as it entitles on accused person accused of an offence not punishable with death to obtain bail on the expiry of one year from the date of his arrest, and in case of an offence punishable with death on the expiry of two yt.4.Rs from the date of his arrest. Some for the accused persons by heir design ensure that the trial of their cases are delayed, so that they may come out of jails on the expiry of the above statutory periods. The above proviso has been misused and the same needs to be deleted. Even before the incorporation of the above proviso, it was open to a Court to grant bail in a fit case on the ground of inordinate delay in the trial of the case, but no accused person was entitled to claim bail as a matter of right on the expiry of certain period."
9. For what has been stated above, the petition fails and is hereby dismissed. However, the petitioners shall be at liberty to approach this Court if the trial is not concluded as per direction referred above.