1999 P Cr (PLP)

Muhammad Iqbal Bhatti for Petitioners. Muhammad Akram Nasir for the State. Mian Abdul Khaliq for the Complainant. A case under section 302/324/148/149, P.P.C. read with section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 was registered at the report of Muhammad Inayat son of Raja vide F.I.R. No.312 of 1996, dated 17-8-1996 for an occurrence in which Muhammad Riaz son of Muhammad Inayat and Ahmad Yar son of Din Muhammad were murdered. About the same occurrence, another F.I.R. No.313 of 1996 was lodged on the same day i.e. 17-8-1996 by one Din Muhammad son of Wilayat in which a different set of accused was named.

2. The petitioners in this petition have been named as accused in F.I.R. No.312 of 1996 as aforesaid. Out of them one Muhammad Arif applied for post arrest bail which was dismissed by this Court vide order, dated 2-6-1997. Now the aforesaid Muhammad Arif alongwith his co-accused Muhammad Akram and Ahmad Yar have applied for bail on statutory ground in view of provisions contained in 3rd proviso to subsection (1) of section 497, Cr.P.C.

3. Learned counsel for the petitioners contended that the petitioners were arrested on 8-9-1996 and since then, they are in continuous detention but the case has not yet been decided nor there is any likelihood of its decision in the near future. In this respect, it is submitted that after the cancellation of the connected F.I.R. No.313 of 1996 which contained the cross-version of the occurrence, a private complaint was filed by the complainant Din Muhammad in which the accused named therein i.e. Inayat, etc. were summoned by the Court against which a petition under section 561-A, Cr.P.C. (Criminal Miscellaneous No.181/Q of 1998) was filed for its quashment. In the aforesaid private complaint, the proceedings before the learned Additional Sessions Judge were stayed vide order, dated 3-7-1998 recorded in Criminal Miscellaneous No. 181/Q of 1998. However, the learned Additional Sessions Judge continued trial in the challan case arising out of the F.I.R. No.312 of 1996. Then a Criminal Miscellaneous No.2184/M of 1998 was moved in the Criminal Miscellaneous No. 181/Q of 1998 by the accused Inayat, etc. in which it was prayed that the proceedings in the challan case be also stayed, upon which, the proceedings in the challan case were also stayed vide order, dated 11-12-1998 recorded in that criminal miscellaneous. It is, therefore, submitted that since the proceedings, in the challan case as well as in the complaint case have been stayed by the High Court, therefore, there is no likelihood that both the matters will be decided in the near future. It is further submitted that the statutory period of two years has expired for no fault of the petitioners/accused, therefore, they are entitled to bail in view of the principle laid down in Zahid Hussain Shah v. The State PLD 1995 SC 49, Muhammad Riaz v. The State PLD 1995 Kar. 349, Muhammad Ishaq v. The State 1996 PCr.LJ 1269 (Lahore), Ali Hassan alias Mithu v. The State 1997 PCr.LJ 411 (Lahore) and Shaukat Ali v. Ghulam Abbas and others 1998 SCMR 228 (Supreme Court of Pakistan).

4. Learned counsel for the State, assisted by learned counsel for the complainant contended that though the period of two years has elapsed and the conclusion of the trial is not within sight on account of aforementioned circumstances but still a couple of adjournments were occasioned as the accused had made request for engaging counsel and some of the adjournments took place because the case was transferred from the Court of the learned Additional Sessions Judge to the Court of Special Judge under Suppression of Terrorist Activities (Special Courts) Act, 1975 and again retransferred to the Court of the Additional Sessions Judge. It was, therefore, submitted that since the couple of adjournments took place due to the request of the accused persons for engaging the counsel, therefore, the petitioners were entitled to bail. The same view was expressed by the learned counsel for the complainant while adding that he would move a petition in the main quashment petition (Criminal Miscellaneous No. 181/Q of 1998) for the withdrawal of the order, whereby, proceedings in the challan case were stayed by the learned Additional Sessions Judge. However, it was admitted that presently, the proceedings in the challan case as well as in the complaint case were stayed in view of the orders aforereferred recorded in Criminal Miscellaneous No. 181/Q of 1998.

5. I have considered the contentions raised at the Bar. It is an admitted fact that the petitioners were arrested on 8-9-1996 and since then they are continuously behind the bars. It is true that couple of adjournments took place at the request of the accused persons as they had prayed for engaging the counsel but that would be immaterial as most of the time was wasted in transfer of the case from one Court to the other as pointed out above. Even at present, the proceedings in the complaint case as well as in the challan case have been stayed and, as such, the conclusion of the trial is not within sight. Hence, in view of the rule laid down in the aforesaid authorities, the petitioners would be entitled to bail. The petition is accordingly allowed and all the three petitioners, irrespective of the merits of the case, are admitted to bail on statutory ground subject to their filing of bail bonds in the sum of Rs.2,00,000 (Rupees two lacs only) each with one surety each in the like amount to the satisfaction of the trial Court. N.H.Q./M-938/L Bail allowed.