' The petitioner along with his other co-accused stands charged under sections 302/ 324/336/337- F(iii)/148 and 149, P.P.C. Vide F.I.R. No,39, dated 31-1-1998 registered at Police Station City, Rawalpindi for causing death of Saleem Khan and causing injuries to Liaqat, Tariq, Kalu, Tariq son of Yousaf and Akhtar Khan. As a result of this occurrence Saleem Khan died on 2-2-1998 whereas Liaqat died later on.
2. The petitioner applied for bail which was declined by the learned A.S.J., Rawalpindi vide order, dated 11-4-2000. Hence the instant petition.
3. Arguments have been heard and record perused.
4. Contention of the learned counsel for the petitioner is that so far as merit of the case is concerned no specific injury has been attributed to the deceased on the part of the present petitioner. He further contends that petitioner seeks bail even on statutory ground. While elaborating his second contention, he submitted that petitioner was arrested on 18-2-1998 and till now is in jail, that charge has not been framed, as such the question of commencement of trial does not arise, that delay' in the commencement of conclusion of the trial is not on account of any act or omission of the petitioner or any other person, acting on his behalf, that since the delay in the commencement of the trial has not been occasioned on account of any act of the petitioner so he cannot be denied the relief of bail on statutory ground. In support of his contention he has placed reliance upon Zahid Hussain Shah v. The State PLD 1995 SC 49, Sher Ali alias Sheri v. The State 1998 SCM R 190, Nazir Hussain v. Ziaul Haq and others 1983 SCM R 72, Panjal v. The State 1990 PCr.LJ 2051 and Wazir Khan v. The State 1983 SCM R 427. He farther contended that the trial Court has relied upon (1998 SCM R 897) but the facts of the said case are not identical to the facts in hand, as such said authority does not apply on all the four corners of this case. He thus submitted that petitioner having been in jail for more than two years has earned a right to be released on bail, as such petition be accepted and be admitted to bail.
5. Conversely, bail application has been opposed by the learned counsel for the complainant assisted by the learned counsel for the State. He conceded that although petitioner is in jail since 18-2-1998, yet this fact alone is not sufficient to release him on bail. He asserted that trial has not started as delaying tactics are being deployed either by the petitioner or his co-accused, that it was due to said tactics that even charge could not be framed, that initially Khalid accused had been absent and thereafter Nadir accused started remaining absent and on one of the date of hearing Yousaf accused failed to appear in the Court. He further contended that the authorities relied upon by the learned counsel for the petitioner have been taken into consideration in 1998 SCM R 897 and as such the trial Court has passed the impugned order in accordance with law.
6. A perusal of the facts reveals that petitioner along with his co-accused are responsible for causing murder of Saleem Khan as well as Liaqat and injuring as many as 6 persons. The petitioner and his co-accused were armed with deadly weapons at the relevant time. There is no doubt that the petitioner was arrested on 18-2-1998 and since then in jail yet this fact alone is not to be taken into consideration while extending benefit under third proviso to section 497(1), Cr.P.C. A perusal of the order-sheet reveals that trial has not started on account of absence of one or the other co- accused of the petitioner. Thus delay in the commencement of the trial is due to an act of co- accused of the petitioner. It is under these circumstances that relief of bail has been refused as held by the august Court reported in 1998 SCM R 897.
7. For what has been stated above, petition fails and is hereby dismissed.