1. ' The applicant seeks bail in Crime No,205/1998 of Police Station Mirwah registered under sections 302/324/431/148/149, P.P.C. And 13-D of Arms Ordinance.
2. ' Briefly the facts of the case are that on 22-12-1998 the complainant Haji Mithan son of Muhammed Baqa, resident of village Taluka Than Mirwah lodged F.I.R. No,205/98 that there existed a dispute between the complainant party and Noor Muhammad Samori in respect of Plot No,364 and that an F.I.R. Is already registered. On the day of incident at about 5-00 p.m. The complainant, his son Bahadur, maternal grandson Milqiat Ali and complainant's sons Ali Hassan and Hamadullah were bringing the cattle home when co-accused Mir Muhammad @ Noor son of Noat Muhammad with rifle, Zahoor with hatchet, Loung son of Ahmed Khan with Lathi, Lal Dino @ Lalu with a gun, Ali Dino @ Balu with hatchet, Moula Bux @ Mouloo, Ghulam Shabbir @ Shaboo, Azizullah son of Taj Muhammad armed with hatchet, Bashir son of Tayabuddin with lathi, Shah Nawaz @ Shahoo son of Ali Murad with hatchet, Sikandar @ Sikoo son of Ali Murad with rifle came out from sugarcane field and crossed the complainant party. They told the complainant party that they would not be spared alive and would be murdered. Saying the accused having weapons fired upon the complainant party with intention to kill. Lal Dino (the applicant herein) fired a shot which hit complainant's son Ali Hassan and the accused having hatchets and Lathis also 'caused blows to complainant's son Hamdullah and Ali Hassan and also fell down the complainant on ground. The complainant cried and the accused seeing the Ali Hassan had been murdered, ran away. On the cries Muhammaduddin son of Haji Wali Dino and other village people came running. The complainant left them to supervise the dead body and appeared at the police station and lodged the F.I.R. He has also alleged that the accused abovenamed in furtherance of their common intention rioted and above vengeance with the intention of murder fired from their rifles and guns and murdered the complainant's son Ali Hassan. They even injured the complainant's son Hamdullah with lathis and hatchets.
3. ' I vide my order passed in Criminal Bail No,144 of 1999 granted bail to four accused, namely, Loung, Mula Bux, Ghulam Shabbir and Sikandar alias Sikoo on 4th June, 1999.
4. ' The applicant applied for grant of bail before lInd Additional Sessions Judge, Khairpur which was dismissed on 30-10-2000, hence this bail application.
5. ' I have heard the learned counsel for applicant as well as learned Additional Advocate-General at length and have perused the record available before me. It is contended by the counsel for applicant that the applicant was arrested on 12th January, 1999 and from that date onwards till today the case has not proceeded due to no fault of the applicant. In support of his above contention that the delay is not at the behest of the applicant the counsel has produced certified copy of the case diary. T1e counsel has further contended that the provisions of the law are mandatory rather than discretionary as regards statutory delay is concerned. He has placed reliance on the following case-law;
(1) Zahid Hussain Shah v. The State PLD 1995 SC 52-53.
6. 'In the above case it has been held by Hon'ble Supreme Court that the right of an accused to be enlarged on bail under the third 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 third 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 third proviso can be refused to an accused by the Court only on the ground that the delay in the conclusion of trial had occasioned on account of an act or omission of the accused or any other person setting on his behalf. The bail under the third proviso ibid can also be refused by the Court if the case of the accused fell under the fourth proviso to section 497(1), Cr.P.C. In all other cases the Court must grant bail."
(2) Jalal v. Allah Yar and another 1993 SCM R 525 ' In this case also the Hon'ble Supreme Court held as under: "We have gone through the F.I.R. And we find that even the manner of the commission of the offence committed by respondent No,1 in the above two appeals does not indicate that they wefe hardened, desperate or ' dangerous criminals. Respondent Allah Yar allegedly had fired one shot at the left arm of one of the deceased and so also Ghulam Rasool, as per F.I.R. The above acts attributed to the above respondent do not indicate that they were desperate, hardened or dangerous criminals. If the above respondents could have killed the deceased in a brutal way by cutting the bodies in the pieces or by indiscriminately firing by Kalashnikovs or would have dragged the dead bodies in order to disgrace the deceased and other members of the family, one could urge that the manner of the commission of offence was such which indicated that the respondents were hardened, desparate or dangerous criminals in terms of fourth proviso to subsection (1) of section 497, Cr.P.C. But this is not the case."
7. ' He has also relied on the case of Muhammad Yousif v. The State (1999 PCr.LJ 501) in which it has been held as follows: "Learned counsel for applicant has placed reliance upon the case of Nazir Hussain v. Ziaul Haq and others, reported in 1983 SCM R 72 and has endeavoured to show that the word 'shall' used in third proviso to subsection (1) of section 497, Cr.P.C. Makes it obligatory upon the Court to grant bail if the statutory period is over and the applicant/ accused is not responsible for contributing any delay. The rule laid down by the Supreme Court in the above-cited judgment is self-explanatory and makes it clear that the word 'shall' used in third proviso to subsection (1) of section 497, Cr.P.C.
8. Does not mean 'may' and is to be read in the ordinary sense. In other words it was made clear by Supreme Court that once the requirements laid down by the Legislature are fulfilled by the applicant/acused bail cannot be refused to applicant on any other ground."
9. ' Learned Additional Advocate-General has pointed out that the point raised by the counsel for applicant was also raised before the trial Court who did not consider the same while rejecting the bail application. He reluctantly acknowledges the fact that indeed delay has taken place. He also acknowledges that the Hon'ble Supreme Court has repeatedly observed in similar cases IB that bail should be granted.
10. ' Keeping in mind the above case-law, 'I would allow this bail application. The applicant is granted bail and he shall be released on his furnishing solvent surety in the sum of Rs,100,000 (Rupees One Lakh) with PR bond in the like sum to the satisfaction of the trial Court.