' The applicants are facing trial for offences under sections 399, 402, 353, 34, P.P.C. (F.I.R. No, 70 of 1995, registered at Police Station, Darkhshan, Karachi, South) before the Court of Ist Additional Sessions Judge/Special Judge, (STA) Karachi South.
2. The bail is being sought firstly, on the ground that all the applicants are in continuous custody since 2-4-1995 and secondly, that even though there is allegation of firing between the parties yet, none on either side has received any injury.
3. Mr. Habib Ahmed learned A.A.-G. Appearing for the State opposes the bail plea on the ground solely that the applicants have been convicted and sentenced to death in another case and their appeals are pending decision before this Court. The case of the applicants due to aforesaid conviction is hit by fourth proviso to subsection (1) of section 497, Cr.P.C.
4. The applicants are in Jail since 6 years (less three weeks). Delay has not been attributed to them.
There is nothing contained in the fourth proviso contemplating to deprive indefinitely an under trial accused of his liberty of being released on bail. Even in view of the fourth proviso bail can be sought by accused by invoking third proviso (on the ground of inordinate delay in conclusion of his trial). Reference in this connection may be made to the case of Gul Muhammad and 2 others v. The State reported as 1987 PCr.11 787 and Fakir Ali v. The State 1990 PCr.LJ 72.
5. We, therefore, allow bail to all the applicants namely (1) Mansoor Ali, (2) Umer Hayat, (3)
Muhammad Fazal, (4) Karimullah, (5) Syed Asif Ali, (6) Muhammad Gulzar and (7) Ahmed Zahoor, subject to their furnishing a solvent surety in the sum of Rs, 1,00,000 (Rupees one lac only) each and P.R. Bond in the like amount to the satisfaction of the trial Court.