1. The petitioner is involved in a case F.I.R. No. 385 of 1996 registered at Police Station Bikhi for an offence under section 302/148/149, P.P.C. on the report of first informant Zulfiqar Ali made on 21-9- 1996 at 11.00 a.m. to Abbas Ali S.I. who was present at the bridge of Rajbah Peer Kot on patrol alongwith Muhammad Mansha H.C. No. 41, Muhammad Arshad Constable No. 1483, Muhammad Ramzan Constable No. 1574 and Ghafoor Ahmad Constable No. 176, alleging that he (complainant) was a Zamindar and a day before at about evening time had come to his paternal cousin Javaid Iqbal to Sheikhupura in connection with some urgent work and on the day of incident at about 6.30 a.m.., he alongwith Javaid Iqbal was going from Sheikhupura to Dhamonkey on motorcycle No. SPL-8574 driven by Javaid Iqbal and when they reached near the poultery farm of Shah Sahib, Iftikhar alias Dani son of Ghulam Qadir armed with 44-bore rifle, Bashir alias Sheri son of Muhammad Din armed with 7 MM rifle, Zafarullah son of Sher armed with 30-bore mauzer, Rehmatullah son of Sardar armed with 12 bore; double barrel gun and Manzoor alias Jhoori son of unknwon were standing on the side of the Bhikhi Road. Manzoor alias Jhoori threw a acacia branch on the road due to which Javaid Iqbal suddenly stopped the motor cycle and both (Javaid Iqbal and complainant) fell down. On that Rehmatullah raised lalkara as to what they were looking for and should pick up Javaid Iqbal separating him from-Zulfiqar Ali and should kill him by firing. On that, Zafarullah and Bashir Ahmad caught hold Javaid Iqbal from both of his arms and Iftikhar alias Dani issued fire of his rifle on Javaid Iqbal which hit him below his chin. The accused raised lalkara to the complainant that there was no enmity with him and he should run away and the accused themselves ran away firing. Hearing the noise of the complainant and voice of firing, Abbas Khan son of Rehmat Khan, Hidayat son of Ghulam Qadir, co-villagers and Dil Nawaz son of Muhammad Khan of Kotli Nau Police Station Wando District Gujranwala, now resident of Dhamonkey who were present in the nearby fields, and many other persons came there who witnessed the incident.
2. Javaid Iqbal fell due to the injuries in the rice field and died. The motive behind the incident was the enmity of previous murders.
2. Earlier the bail was refused by the learned Additional Sessions Judge, Sheikhupura on 10-8-1999 with the observations:--- "So far as the contention of the counsel for the petitioner about the contradiction between the ocular account and medical evidence is concerned, the same needs deeper appreciation which is not warranted at this stage of tentative assessment. I am not inclined to admit the petitioner to bail on the basis of this alleged contradiction between the ocular account and the medical evidence.
3. The petitioner and his co---accused while armed with deadly fire arms waylaid the deceased and the complainant. The present petitioner who was armed with rifle allegedly gave a direct fire shot on the vital part of the deceased as a result of which he succumbed to the injuries at the spot. The present petitioner exhibited cruel instinct of character and thus he can be described as desperate hardened criminal. He remained fugitive from law for about six months. The remaining accused are still at large. Order sheet of the main case shows that the P. Ws. had been appearing for the last 3/4 dates of hearing and the matter had been adjourned at the request of the accused. Even today three P.Ws. namely Dil Nawaz, Abbas and Liaqat are in attendance and in case the defence counsel co-operates, their statements can be recorded for early disposal of the case. This case has come into the notice of this Court and it shall be expeditiously decided after the summar vacations."
3. The bail is now pressed on the grounds that the petitioner is innocent law-- abiding citizen and has been falsely and maliciously implicated due to ulterior motive of the complainant by joining hands with the local police and that he was arrested on 24-3-1997 and since then is behind the bares and a period of 2 years and 4 months has elapsed but the trial of the case against the petitioner has not yet been concluded and that so far only 3 P. Ws. have been examined and that the challan of the case was firstly submitted before the Special Judge, S.T.A., and thereafter, on 6- 5-1999, the same was transferred to the Court of learned Additional Sessions Judge and that if the delay partly attributed to the accused-petitioner is excluded from the total period of his detention, even then his case falls within the 3rd provision to section 497(1), Cr.P.C. and he is entitled to the concession of bail on statutory ground and that the petitioner is not a previous convict and there is no apprehension of his abscondence or tampering with the prosecution evidence if he is admitted to bail and that he is ready to furnish bail bond to the satisfaction of the Court.
4. Learned A. A.-G. has not controverted the accrual of the statutory right to the petitioner as his detention without his fault is over two years and the trial has not concluded but has submitted that the injury caused by the petitioner was on the vital part of the body and that the co-accused have absconded and the conduct of the petitioner was of desperate.
5. I have given due consideration to the valuable arguments on both sides and perused the record.
4. The gist of the proceedings of the Court is admittedly as under: "Accused challaned to the Court of Judicial Magistrate 1st Class Sheikhupura in police custody on 11-6-1997 who sent the case to the learned Sessions Judge with direction to appear there on 25-6- 1997.
5. 25-6-1997:The accused Iftikhar in police custody. Report for weapon of offence to be submitted on 8-7-1997.
6. 8-7-1997:Accused not produced. P.O. transferred. Put to 23-7-1997. At this stage, accused produced in police custody.
7. 23-7-1997:Report of Forensic Science Laboratory await.
8. 31-7-1997:-do- 7-8-1997: -do- 10-9-1997: -do- 15-9-1997Report included in the file appears to be fictitious. A.S.-I. Muhammad Arshad called for explanation on 18-9-1997.
9. 18-9-1997:P.P. to report/give opinion as to which Court has jurisdiction to hear this case.
10. 25-9-1997:P.O. on leave.
11. 27-9-1997:As the weapon of offence is semi-automatic rifle, therefore, the case transferred to Additional Sessions Judge where N.B.W. of accused Bashir, Zafar Ullah Rehmat Ali and Manzoor issued for 9-10--1997.
12. 9-10-1997:The file sent to the Sessions Judge as the case was triable exclusively by him or senior most A.S.J.
13. 10-10-1997:The bail petition transferred to ASJ-1 for disposal where for supply of copies, case put to 18-10-1997.
14. 18-10-1997:-do- 23-10-1997: Put to 28-10-1997 for proclamation against absconders.
15. 28-10-1997:-do-- 3-11-1997:Proclamations in terms of section 87, Cr.P.C. ordered to be published for 22-11-1997.
16. 22-11-1997:D.C. Sheikhupura wanted time.
17. 3-12-1997:-do--- 13-12-1997:-do--- 22-12-1997:-do--- 17-1-1998:-do- 9-2-1998:counsel for the accused not present.
18. 21-2-1998:co-accused in custody. Counsel for the accused not present.
19. 2-3-1998: -do- 18-3-1998:Adjourned to 11-4-1998 without any reason.
20. 11-4-1998:-do-- 23-4-1998:-do- 16-5-1998:N.B.W. issued against Bashir, afarullah, Rehmatullah and anzoor accused.
21. 27-5-1998: -do- 10-6-1998:Report of concealment on N.B.Ws. S.H.O. was summoned for 13-6-1998.
22. 13-6-1998: -do- 29-6-1998: -do- 30-6-1998:Publication of proclamation in three national Dailies ordered for 8--7-1998.
23. 8-7-1998:Proclamation not received and awaited.
24. 16-7-1998: -do- 4-9-1998: -do- 19-9-1998:Proclamations received except Urdu Daily. The case put to 29-9-1998.
25. 29-9-1998:Case of Iftikhar accused separated under section 512, Cr.P.C. Copies delivered.
26. 17-10-1998:Counsel for the accused busy. For evidence to come up on 5-11-1998.
27. 5-11-1998:-do- 7-11-1998:P.Ws. not served. Summoned for 28-11-1998.
28. 28-11-1998:Court busy in other case.
29. 7-12-1998:Counsel for the accused busy in murder case.
30. 17-12-1998:Counsel for the accused not present.
31. 6-1-1999:P.Ws. not present.
32. 16-1-1999: -do- 27-1-1999:Counsel for the accused not present. Charge framed under section 302/148/149, P.P.C.
33. 20-2-1999:Defence counsel busy in other Court.
34. 5-3-1999:Court time over.
35. 17-3-1999: -do- 5-4-1999:P.O. left charge.
36. 21-4-1999:No incumbent came.
37. 6-5-1999:Case transferred from Special Judge, S.T.A., to A.S.J., Sheikhupura.
38. 19-5-1999:Statement of P.W. 1 recorded.
39. 5-6-1999:Statement of P.W.2 recorded.
40. 23-6-1999:Wakalatnama on behalf of accused filed. No P.W. present.
41. 8-7-1999:Defence counsel not present.
42. 20-7-1999:Defence counsel went to Pakpattan.
43. 10-8-1999:Statement of one P.W. recorded and the case was adjourned to 28-9-1999.
6. The total period of detention of the petitioner is 2 years, 5 months and 14 days. The dates of adjournment sought by him were as under: 9-2-1998 to 21-2-199812 days 21-2-1998 to 2-3-19989 days 2-3-1998 to 18-3-199816 days 17-10-1998 to 5-11-199819 days 5-11-1998 to 17-11-199812 days 7-12-1998 to 17-12-199810 days 17-12-1998 to 6-1-199920 days 27-1-1999 to 3-2-19997 days 20-2-1999 to 5-3-199913 days 8-7-1999 to 20-7-199912 days 20-2-1999 to 10-8-199921 days ______________________________________ Total151 days
7. Even if 151 days are deducted from 2 years, 5 months and 14 days, the period of detention becomes over 2 years. So far as the objections of the learned A.A.-G. are concerned, the same have no force in the light of the following observations of the Hon'ble Supreme Court in the case of Zahid Hussain Shah v. The State PLD 1995 SC 49: --- "As to the first objection of learned counsel or the complainant that the delay in the conclusion of trial had occasioned on account of conduct of the appellant in the case, it is not borne out from the diary of the case placed before us. According to case diary the Challan was put up before the Court on 12-10-1993 and between the period from 12-10-1993 to 14-5-1993 the case was adjourned only on two occasions at the request of appellant. The first adjournment was granted on 20-10- 1993 for a period of 3 days when the appellant asked for time to argue himself the charge in the case. The second adjournment at the request of appellant was granted by the Court on 7-11-1993 for 14 days on the application of appellant wherein he requested the Court to first enquire from his unit in the Army where he was employed as a driver whether he should-be tried before a Civil Court or not. Barring these two adjournments, the case was adjourned on all other dates for reasons not attributable to the appellant. The learned Judge in Chambers while holding in the impugned judgment that the delay in conclusion of trial was not wholly attributable to the prosecution observed that the trial was protracted on account of summoning of the co---accused in the case shown in column No. 2 of the challan. The reason for delay in the trial noticed by the learned Judge in Chambers was hardly attributable to the conduct of appellant or of a person acting on behalf of the appellant. The other reason for refusing bail to appellant given by the learned Judge in Chambers was that the injury caused by the appellant was on the vital part of the body and it was declared grievous by the doctor. This reason was hardly relevant for refusing bail to the appellant under the 3rd proviso to section 497(1), Cr.P.C. which reads as follows: --- 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 or in exercise of any right or privilege under any law for the time being in force, 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; (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: Provided further that the provision of the 3rd 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.
44. 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 (ibid) 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 act or omission of the accused or any other person setting on his behalf. The bail under the 3rd proviso, (ibid), 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. 1n all other cases the Court must grant bail. In the case of Wazir Khan v. State 1983 SCM R 427, the petitioner was refused bail by the High Court under the 3rd proviso to section 497, Cr.P.C. on the ground that the delay in the trial had occasioned on account of abscondence of the co---accused in the case. This Court while admitting the petitioner in that case to bail observed as follows:--- We issued notice to the State and have heard both the learned counsel for the petitioner as well as the learned counsel appearing on behalf of the State. The latter informed that Muhammad Khan, co-accused who is a Naik in the Pakistan Army has, indeed not been apprehended and the reason for the inability of the police to arrest him is that the Military Authorities have refused to surrender his custody. From this it is obvious that the delay which has occurred in the commencement of the trial is neither attributable to the petitioner nor to any person acting on his behalf' and it is not proper that the petitioner should suffer merely because the police is unable to apprehend Muhammad Khan, co---accused. The petition is, therefore, converted into appeal and allowed.
3. The petitioner is released on bail in the sum of Rs. 20,000 (Rupees twenty thousand only), with two sureties each in the alike amount to the satisfaction of Assistant Commissioner/Duty Magistrate, Mianwali.
45. In the case of Nazir Hussain v. Ziaul Haq and others 1983 SCM R 72, this Court while considering the nature of the right of the accused to be enlarged on bail under the 3rd proviso to section 497, Cr.P.C. observed as follows:---
9. The ground of delay for grant of bail in cases falling within the prohibition contained in subsection (1) of section 497, Cr.P.C. before the effective amendment, was undoubtedly controlled by the discretion of the Court concerned. The facts varied from case to case end accordingly the discretion exercised was creating some anomalies. That is why the legislature intervened and the law was made more certain. One of the changes affected in the statute from the previous practice in the exercise of discretion, was that the grant of bail on expiry of certain specified period and under certain conditions was made a matter of right and not only of discretion. We do not agree with the learned counsel that the use of the word shall in the third proviso, is in the meaning of may Learned counsel failed to notice that while in first proviso the word may has been used, in the second and third the word 'shall' has been used with a view to highlight it. Moreover, reading 'may' for the word 'shall' in third proviso would be in large majority of cases to the detriment of the accused and his liberty, when it become due in the context of bail. We accordingly repel the argument of the learned counsel and hold that word shall in third proviso will have to be read in its ordinary sense. That being so, there is nothing in the entire proviso, its main part as also sub-clause
(b) to show the grant of bail on ground of delay in cases covered there under has been left (in a general way) to the discretion of the Court. We also do not agree with the argument that the matter being entirely of the discretion of the Court, it is empowered to take into account the expected/apprehended delay.
46. The other contention of the learned counsel for the complainant that the appellant is not entitled to the concession of bail under the 3rd proviso to section 497(1), Cr.P.C. as he behaved aggressively in Court and had gone to the extent of fighting with the counsel for complainant is equally without any merit. Firstly, the appellant was not refused bail in the case by the learned Judge in Chambers on this ground and secondly, the petitioner could be died the concession of bail under the 3rd proviso ibid on this ground if his case was covered by the 4th proviso to section 497(l), Cr.P.C."
8. For the above reasons, the petitioner is entitled to bail on statutory ground. As such, this petition is allowed and the petitioner is granted bail subject to his furnishing bail bond in the sum of Rs.
47. 2,00,000 (Rupees two lacs only) with two sureties in the like amount each to the satisfaction of the trial Court.