' Petitioners seek post-arrest bail in case F.I.R. No,92 of 1997, dated 8-6-1997, under section 302/324/148/149, P.P.C. Registered at Police Station GoIra Sharif, District Islamabad.
2. The allegation against the petitioners is that they alongwith three others armed with lethal weapons, formed an unlawful assembly and in prosecution of their common object waylaid the complainant party and consequently committed the murder of Ashfaq Ahmad and Mehrban and caused injuries to Muhammad Aslam, Muhammad Bashir and Karamat Hussain.
3. The petitioners moved post-arrest bail application which came up for hearing before the learned Sessions Judge, Islamabad who was pleased to decline the same relief vide order, dated 29-6- 1999. Hence the instant petition.
4. Arguments have been heard and record perused.
5. Contention of the learned counsel for the petitioners is that out of the present petitioners, Muhammad Bashir has not been attributed any role of causing any injury to the deceased or any injured P.W., that petitioner Talib Hussain has been assigned the role of causing injury to Muhammad Aslam and petitioner Muhammad Nawaz has been attributed the role of catching hold the Mehrban and then dragging him inside the house where, consequently, he was done to death, that the petitioners were arrested on 11-6-1997 and they are in the judicial lock-up for the last about 2 years and 4 months but the trial has not so far started, that the petitioners had filed writ petition as a result of which proceedings were stayed but the said delay on account of stay order of Court cannot be attributed to the present petitioners as act of Court cannot be construed against the accused and placed reliance upon Muhammad Riaz v. The State (PLD 1995 Karachi 349) and Ehsan Ali v. The State (1992 PCr.LJ 1511). He further submitted that no doubt two persons had been murdered and three injured yet the present petitioners cannot be construed to be hardened and desparate/dangrous criminals and their case does not fall under forth proviso to section 497, Cr.P.C. And placed reliance upon Zahid Hussain Shah v. The State (PLD 1995 SC 49). He, thus, submitted that as the petitioners have not either been attributed any role of causing injuries to the deceased or causing fatal injuries to P.Ws. So their case require further probe and they may be released on bail.
6. Conversely the bail application has been opposed by the learned counsel for the complainant assisted by learned counsel for the State. It is vehemently argued by the learned counsel for the complainant that the present petitioners alogwith other waylaid the complainant party after due meditation and arming themselves with lethal weapons, that each of the accused shared common intention with his co-accused as such the mere 'fact that the petitioners have not been assigned any effective role in the murder of deceased Ashfaq and Mehrban and of causing injuries to other P.Ws. Does not make any difference. He further argued that to the writ petition been not moved by the present petitioners the trial would have concluded and as such this act of the accused/petitioners also disentitted them to the relief sought by them. He further argued that as the petitionf.Cs alongwith their co-accused had waylaid the complainant party and had committed the murder of two persons and caused injuries to three persons so their conduct squarely falls within that ambit of proviso IV to section 497(1), Cr." C. And this fact further disentitles them to the relief being sought by them.
7. From the contents of F.I.R. It is evident that petiti mer Muhammad Nawaz was armed with iron rod whereas Muhammad Bashir petitioner was armed with 12 bore gun and Talib Hussain was armed with lc-life 1 he I accused/petitioner Muhammad Bashir has not been attributed any role in the l A commission of this offence as he has neither been attributed any injury to the I deceased nor to the injured P.Ws. However, Talib Hussain petitioner has been attributed the role of causing injury to Muhammad Aslam whereas Muhammad Nawaz petitioner has been attributed the role of catching hold of Mehrban and thereafter, dragging him inside the house where he was finally done to death.
Had the accused/petitioner Muhammad Nawaz not caught hold of Mehrban and dragged him inside the house, it could be possible that he may have saved his life. Thus, the role attributed to Muhammad Nawaz cannot be equated with his co-accused Muhammad Bashir and Talib Hussain.
Admittedly all the accused were arrested on 11-6-1997 and are in judicial lock-up since then and as such they have undergone a period of two years and 4 months in jail. There is no doubt that trial could not be started due to filing of writ petition by the accused, but this fact will not disentitle the accused/petitioners Muhammad Bashir and Talib Hussain to the relief sought by them.
8. Keeping in view the role attributed to them and the period of their detention, the petition to the extent of Muhammad Bashir and Talib Hussain is accepted and they are ordered to be released on bail subject to their furnishing bail bonds in the sum of Rs,1 lac each with two sureties each in the like amount to the satisfaction of the trial Court. However, petition to the extent of Muhammad Nawaz is dismissed.
9. It is pertinent to point out that case pertains to June, 1997 and trial Court has now fixed it for 12- 10-1999. Accordingly trial Court is directed to decide the case on day to day basis.