' The petitioner is involved in a case F.I.R. No,29 of 1998, dated 13-1-1998 registered at Police Station Midh Ranjha for an offence under section 334/ 324/ 148/ 149/ 109, P.P.C., on the complaint of Ahmad Khan that the complainant had gone to Mauza Badar from his village Udian and when he came back and reached near the bridge of canal, he saw that his nephew Muhammad Khan came on cycle and was going in front of the complainant at about 4/5 acres and that Sultan raised a lalkara and the other three co-accused caught hold of Muhammad Khan and threw him on the ground whereupon Walayat son of Dosa, petitioner, fired at him with his rifle which inflicted on the back side of his knee.
2. Earlier, the bail was refused by the Trial Court on 17-2-1999 and by the learned Additional Sessions Judge, Bhalwal on 5-4-1999 with the observation that the injury was attributed to him as a result of which the leg of the injured was amputated and that specific role has been attributed to the petitioner.
3. The bail is now pressed on the grounds that the petitioner is behind the bars for more than one arid a half years and in no manner is responsible for the delay caused in conclusion of the trial and he is entitled to be released on bail on statutory ground and that the injury falsely attributed to the petitioner is on the non-vital part of the body and that there is delay of two days in lodging the F.I.R., which has not been explained and that co-accused were allowed bail by the Court and as a rule of consistency, the petitioner is also entitled to bail and that no empty was recovered from the spot and that the eyewitnesses are not only closely related but are also interested witnesses and that it is yet to be determined as to whether the alleged inquiry can be believed to be caused by 7-MM rifle which fact renders the case of the petitioner that of further inquiry. The learned counsel for the petitioner has submitted that the learned Trial Court as well as the learned Additional Sessions Judge while refusing 'the bail has not properly appreciated the law of bail as laid down in the Code of Criminal Procedure and also not appreciated in true perspective the facts and circumstances of this case, the judicial precedents of the superior Courts. The learned counsel for the petitioner has further submitted that once the statutory right has accrued to the petitioner and there is no delay caused by him in the conclusion of the trial, his confinement in the jail amounts to punishing a person without trial which is against the very spirit of criminal justice. He further submitted that while adding the provisos to section 497, Cr.P.C., the legislature was well aware that the offences are of different kinds and different gravity. The learned counsel further submitted that when the investigation is over, the accused is in police custody and he has got no previous criminal record, to deny him the right available under the statute is not justified. The learned counsel has specifically referred to Gul Zaman v. The State (1999 SCM R 1271), Zahid Hussain v. The State (PLD 1995 SC 49), Ghulam Sarwar v. The State (1990 SCM R 1045) and Abdul Rashid v. The State (1998 SCM R 897).
4. The bail is opposed on the ground that the petitioner is specifically named in the F.I.R., specific role has been attributed to him and that the injury was so grievous that the leg of the victim had to be amputated and that the petitioner and co-accused were armed with deadly weapons and that the principle of consistency is not applicable in this case.
5. I have given due consideration to the valuable arguments on both sides and also perused the record. The relevant law of bail is contained in clause (a) of 3rd proviso and the bar against it in the 4th proviso to section 497(1), Cr.P.C., which are reproduced as under:- "497. When bail may be taken in case of non-bailable offence.--
(1) When any person accused of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years; ' Provided...
' Provided...
' 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 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; or
(b) ..
' Provided further that the provisions of the third 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."
6. In the case of Gul Zaman v. The State (1999 SCM R 1271) where Hon'ble Supreme Court observed that mere accusation against the accused cannot be equated with indictment. The Hon'ble Supreme Court also traced the history of the provisos to section 497, Cr.P.C., which is reproduced with advantage:--- "It may be pertinent to point out the original section 497 of the Code as was enacted in 1898 did not contain above provisos 1 and 3 to subsection (1) of section 497, Cr.P.C. However, with the passage of time, it was felt that an exception to the rule contained in subsection (1) of section 497 should be made in respect of a person below the age of 16 years, a women and a sick or infirm person, so in 1923 proviso 1 to subsection (1) of section 497, Cr.P.C., was added by the Code of Criminal Procedure (Amendment) Act, 1923 (Act XVIII of 1923) in order to enable the Court to grant bail to any person under the age of 16 years or to any women or to sick or infirm person who otherwise on merits would not be entitled to bail.
' It seems that the superior Courts in some of the cases held that inordinate delay in prosecution of a criminal case amounts to abuse of process of Courts/law warranting grant of bail on the above ground. In this regard reference may be made to the case of Riasat Ali v. Ghulam Muhammad and another (PLD 1968 SC 353), the case of Ahrar Muhammad and others v. The State (PLD 1974 SC 224) and the case of Malik Ghulam Jilani v. Station House Officer, Police Station Gulberg, Lahore and 2 others (PLD 1975 Lahore 210). It appears that the Legislature took notice of the above judicial dictum and in order to give statutory recognition to the above ground and also probably on account of overcrowding of jails, has enacted proviso 3 to subsection (1) of section 497 through Code Criminal Procedure (Second Amendment) Ordinance, 1979 (Ordinance LXXI of 1979), (gazetted on 22-12- 1979) providing the statutory delay mentioned therein as a ground for admitting an accused person to bail in respect of non-bailable offences. It may also be stated that proviso 4 was incorporated by Code of Criminal Procedure (Second Amendment) Ordinance, 1983 (Ordinance XXXII of 1983) providing exception to above proviso 3 by laying down that the provision of the third proviso shall not apply to a previously convicted offender or to a person who, in the opinion of the Court is hardened or dangerous criminal."
7. The Hon'ble Supreme Court also reiterated the guidelines for the Courts for the disposal of bail matters as given by the said Courts in the case of Tariq Bashir v. The State (PLD 1995 SC 34) reproducing the same as under:-- "There is no concept of punishment before judgment in the criminal law of the land. The question of grant/refusal of bail is to be determined judiciously having regard to the facts and circumstances of each case. Where the prosecution satisfies the Court that there are reasonable grounds to believe that the accused has committed the crime falling in the first category the Court must refuse bail. On the other hand where the accused satisfied the Court that there are no reasonable grounds to believe that he is guilty of such offence, then the Court must release him on bail. For arriving at the conclusion as to whether or not there are reasonable grounds to believe that the accused is guilty of offence punishable with death, imprisonment for life or with ten years imprisonment, the Court will not, conduct a preliminary trial/inquiry but will only make tentative assessm ent i,e,, will look at the material, collected by the police for and against the accused and be prima facie satisfied that some tangible evidence can be offered which, if left unrebutted, may lead to the inference of guilt. Deeper appreciation of the evidence and circumstances appearing in the case is neither desirable nor permissible at bail stage...The bail order must be carefully balanced and weighed in scale of justice and requirements of relevant law."
' The Hon'ble Supreme Court further observed:--- "In Amir v. The State (PLD 1972 SC 277 it was observed that for the purposes of bail law is not to be stretched in favour of prosecution and the benefit of doubt, if any, must go to the accused. In Khalid Saigol v. State (PLD 1962 SC 495) it was observed that the Court has to look at the material placed before it by the Investigating Officer and be prima facie satisfied that some tangible evidence can be offered which, if left, unrebutted, may lead to the inference of guilt, and that heinousness of the offence is no ground for rejection of bail. In Nadra v. Jamiat Khan and others (PLD 1968 SC 310) it was observed that ordinarily the framing of a charge upon taking evidence referred to in section 208 and examination of the accused would furnish a ground for such a belief as is required to be found under section 497, Cr.P.C. In Muhammad Ayub v. Muhammad Yaqub and the State (PLD 1966 SC 1003), while discussing the nature and scope of power under section 498, Cr.P.C., it was observed that though it barred the grant of bail to a convict person, it empowered the Courts to grant bail to an under trial accused person."
8. In the case of Zahid Hussain Shah v. The State (PLD 1995 SC 49), the Hon'ble Supreme Court observed as under:--- "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 to section 497(1), Cr.P.C., 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 to section 497(1), Cr.P.C., 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. In all other cases the Court must grant hail. "
' The principle laid down in the said case was approved by the Hon'ble Supreme Court in the case of Abdul Rashid v. The State (PLJ 1998 SC 1241).
10. In the case of Ghulam Sarwar v. The State (1990 SCM R 1045), the trial had not concluded within one year and the Hon'ble Supreme Court allowed bail with the observation that bail under section 497(1), Cr.P.C., could only be refused when it is on record that the petitioner was desperate, hardened and dangerous criminal and when no such thing was found against the petitioner, he was entitled to bail.
11. In the present case, admittedly, the petitioner is accused of an offence under section 334/324/148/149/109, P.P.C., and none of these offences is punishable with death. It is also admitted position that the petitioner is detained for such offence for a continuous period exceeding one year as he was arrested on 8-5-1998 and today is 2-9-1999 i,e,, for 1-1/4 years. It is also admitted position that the trial of the petitioner for such offence has not concluded and even the charge has not as yet been framed. The petitioner has also no previous record of being a hardened, desperate or dangerous criminal or involved in terrorism.
12. In this view of the matter, the petitioner is granted bail on statutory ground subject to his furnishing bail bonds in the sum of Rs,1,00,000 (Rupees one lac only) with two sureties in the like amount each to the satisfaction of the Trial Court. Copy data.