' SARDAR MUHAMMAD RAZA, J.---Raz Muhammad son of Muhammad Baz of Gulozai Peshawar is involved in a case of murder under section 302/148/149, P.P.C. Vide, F.I.R. No, 425, dated 14-10-1992 of Police Station Chamkani. He remained absconder till 4-10-1997 when he was arrested. His first application ever, filed before the lower Court for his release on bail under proviso IIIrd to section 497, Cr.P.C. Was declined and hence this petition.
2. So far as the arrest of the petitioner, it was on 4-10-1997 from whence he has completed a period of continuous detention for two years with reference to a murder case on 4-10-1999. He is entitled to be released on bail as of right provided the condition of proviso III and IV are duly fulfilled. In that behalf, there is no evidence on record; that the petitioner is or has been a hardened, dangerous and desperate criminal and also that, such delay of two years is caused by him or on his behalf.
The petitioner has never ever moved a regular bail application unless he thought that one under proviso III to section 497, Cr.P.C. Would be fruitful.
3. Learned counsel for the petitioner argued, firstly, that the petitioner had remained absconder and secondly that the trial has already commenced and hence the petitioner should not be released on bail. I am afraid, both these contentions do not hold ground. When concession is claimed under proviso III to section 497, Cr.P.C., the point of time crucial thereto is the conclusion of trial within two years and not the commencement, which in this context, is totally irrelevant.
4. So far as the question of abscondence is concerned, this is also not material in the present case.
No doubt abscondance in certain cases and at bail stage has been considered to be a disqualification yet, in an application under proviso III to section 497, Cr.P.C., it should not be so considered for the simple reason that the accused has already spent two years/statutory Period in jail after the abscondence and arrest without the conclusion of trial and secondly, that a disability of abscondence is not mentioned in provisos III and IV to section 497, Cr.P.C. Despite the fact that all other disabilities so indicated by the legislature are mentioned, of course.
5. The application is accepted and the petitioner is directed to be released on bail provided a bond in a sum of Rs,100,000 with two local D reliable and resourceful sureties are furnished to the satisfaction of the trial Court.