1. ' The applicant/accused who is facing trial under sections 324,353,34, 399/401, P.P.C. And 13-D of Arms Ordinance (Crime No, 106/1996 of Police Station A Section Sukkur) before the 1st Additional Sessions Judge, Sukkur has moved this application under sections 497/498 of Criminal Procedure Code, after his earlier application filed before the Trial Court was dismissed by order dated 29-12- 2001.
2. ' The brief facts relating to the application are that co-accused Javed and Muhammad Imran (applicant herein) were involved in an encounter with the police on 24-10-1996. The police arrested Javed on the spot and recovered one unlicensed country-made pistol and 6 live bullets from him while the applicant succeeded in escaping from the scene of the incident. After arrest Javed disclosed the name of Imran as his accomplice. The applicant was arrested in another case on 11- 7-1998 and confined in Central Prison, Sukkur from where he was arrested and produced before the trial Court in this case. In the meantime Javed was released on bail. On 22-12-1999 the applicant moved a bail application and on 5-1-2000 he was released on bail by the learned 1st Additional Sessions Judge, Sukkur on furnishing surety in the sum of Rs, 1,00,000 and P.R Bond in the like amount to the satisfaction of trial Court. After release on bail, the applicant attended the trial Court on all dates of hearing but remained absent on 10-4-2001 and 25-5-2001 without any intimation; however, on 6-6-2001 he appeared in Court himself with a medical certificate in support of his application for condonation of his absence on the ground that he could not communicate his absence to the Court as there was no other male member in his family. The learned trial Judge without discussing the merits of his plea rejected the application and remanded him to custody as his bail bond had already been cancelled.
3. ' Thereafter, the applicant filed an application for grant of bail before this Court (Cr. B.A No, D- 409/2001) which was disposed of on 10-7-2001 with the observation that if the trial is not concluded within three months the applicant would be at liberty to repeat the application before the trial Court, which would consider the same notwithstanding the rejection of the application for bail by the High Court. It is stated that the trial was not concluded within three months and on or about 9- 10-2001 the applicant filed an application for bail before the trial Court under section 497, Cr.P.C, which was dismissed on 8-11-2001, inter alia, on the ground that the case was partly heard and only Investigating Officer remained to be examined. Aggrieved by the aforesaid order the applicant filed another bail application before this Court (Cr.B.A No,S-752/2001) which was disposed of by Order dated 26-11-2001 on the assurance of the State Counsel that the Investigating Officer would be examined without delay and the trial completed within 30 days froth 27-11-2001. It was again observed by this Court that if the trial is not completed within 30 days the applicant may move a fresh application for bail. Again the trial was not concluded within the specified period and consequently the applicant repeated the bail application before the 1st Additional Sessions Judge, Sukkur who dismissed the same summarily by order dated 29-12-2001 in the following terms:- "His earlier bail application has been rejected on 25-6-2001 and 8-11-2001 on the same grounds.
4. Hence no fresh grounds exist to file. Third Bail Application stands dismissed." (sic)
5. ' Mr. Ghulam Sarwar Korai, learned counsel for the applicant, submitted that the applicant attended the trial Court regularly, however, on 10-4-2001 and 25-5-2001 he was unable to attend the Court on account of illness for which he submitted an application explaining the cause of his absence alongwith a medical certificate when he voluntarily appeared before the Court on 6-6-2001 and without considering his application and the reasons stated therein he was ordered to be taken into custody. He added that the Court has still not completed the applicant's trial in spite of the two aforementioned orders of the High Court dated 10-7-2001 and 26-11-2001 respectively and that the applicant has been sufficiently punished for more than seven months as he has remained in jail since 6-6-2001. In support of his contention Mr. Korai referred to the case of Muhammad Inamul Haq v. State, 2000 P.Cr.LJ 717, where a learned Division Bench of this Court in a case involving sections 302, 337, 120-A and 109, P.P.C. Granted bail to the accused for the second time on the ground that the cause of his earlier absence from the Court on the date of hearing was found sufficient in the circumstances explained by him.
6. ' Mr. Siddiqui, learned counsel for the State, argued that based upon the past experience that there was a strong likelihood that the applicant would again abuse the concession of bail and opposed the application asserting that the trial would be concluded in the very near future after examination of the Investigating Officer. However, when he was confronted with the judgment of the Division Bench of this Court referred to above, he conceded that the concession of bail may be extended to the applicant/accused.
7. From the facts stated above, it is apparent that the absence of the applicant on 10-4-2001 and 25- 5-2001 was due to illness for which he produced a medical certificate before the trial Court and explained the reason of his absence on the previous two dates of hearing which appear to be reasonable. It is significant to note that he appeared voluntarily before the trial Court on the following date of hearing on 6-6-2001. I am of he view that he has been sufficiently punished for remaining absent on two dates of hearing by remaining in jail for over seven months from 6-6- 2001 when he was remanded to custody. It may be mentioned that the prosecution in spite of the assurance and the order of this Court has not examined the Investigating Officer who is the only remaining witness in the case. Further, the offence for which the applicant is being tried, does not fall within the prohibitory clause of section 497 of Criminal Procedure Code.
8. In view of the above circumstances, the applicant has made out a case for grant of bail.
9. Accordingly, the applicant is directed to be released on bail on furnishing surety in the sum of Rs, 1,50,000 (Rupees one lac and fifty thousand only) and P.R. Bond in the like amount to the satisfaction of trial Court.