2007 PLP 860 (MLD)

Petitioner seeks post-arrest bail in case F.I.R. No. 349, dated 4-11-2005 under sections 302/148/149, P.P.C. read with section 7 of the Anti-Terrorism Act, registered at Police Station Muzaffarabad District Multan.

2. Briefly the prosecution story as narrated in the F.I.R. which was registered on the statement of Mst. Karam Mai is that on 4-11-2005 at 8-13 A.M., her sons namely Allah Ditta, Mazhar and Zafar were going to the mosque to offer prayer of Eid-ul-Fittar and when they reached near the house of Yasin Gill, 16 accused persons including the petitioner while armed with fire-arms and blunt weapons emerged from inside the house of Yasin and launched an attack upon the said Allah Ditta etc. after raising a Lalkara and thereafter they started grappling with Allah Ditta etc. The co-accused of the petitioner resorted to incriminate firing resulting into instant death of Allah Ditta at the spot while Mazhar, Zafar, Allah Wasaya, Muhammad Nawaz, Yasin and Muhammad Yousaf were seriously injured. The role attributed to the petitioner is that of' causing blunt weapon injuries to Karam Mai, complainant. Later on Mazhar, Zafar, and Allah Wasaya also died. The motive of the occurrence was stated to be the previous enmity between the parties.

3. After refusal of concession of post-arrest bail the petitioner moved this court for the grant of post-arrest bail vide Criminal Miscellaneous No. 512-B, 2006 but the same was dismissed by this Court vide order, dated 4-5-2006.

4. During pendency of the trial an application under section 23 of the Anti-Terrorism Act, 1997 was moved before the learned Judge Anti-Terrorism Court No.2 Multan challenging the jurisdiction of said Court but the same was dismissed vide order, dated 4-9-2006. The said order was called in question before this Court through Criminal Revision No.315 of 2006 which has been disposed of today, through separate order.

5. During this period Ordinance No.XIII of 2006 was promulgated whereby an amendment was made in section 497, Cr.P.C. adding certain provisos to subsection (1) to section 497, Cr.P.C. Third proviso of said Ordinance read as under: "Provided further that where a woman accused of an offence is refused bail under the foregoing proviso, she shall be released on bail if she has been detained for a continuous period of six months and whose trial for such offence has not been concluded, unless the Court is of the 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 her behalf." Relying upon the said Ordinance the petitioner tried her luck once again before the learned Judge Anti-Terrorism Court No.2 Multan but this time too her bail application was dismissed. Thereafter the petitioner again moved this Court for the grant of bail after arrest on the basis of above mentioned statutory provision. However, during pendency of said application the above-mentioned Ordinance lapsed. On 8th of November, 2006 new life to the said provision was given by the President of Pakistan by way, of promulgating Ordinance No.XXXV of 2006. Except for the date of promulgation and number of the Ordinance there was no material change in the new Ordinance.

6. Relying upon the newly added 3rd Proviso of section 497(1) the learned counsel for the petitioner has contended that petitioner is behind the bars since 10-11-2005 and despite of the expiry of the statutory period of six months the trial has not yet concluded and as such the petitioner is entitled to bail as a matter of right.

7. On the other hand learned Deputy Prosecutor General assisted by the State counsel as well as the complainant has opposed this bail application on the ground that as the delay in the trial being attributable to the petitioner, she is not entitled to bail under the above mentioned Ordinance.

8. We have gone-through the order sheet of the learned trial Court which shows that the challan was received by the learned A.T.A. Court No.2 Multan on 17-3-2006 and copies of the documents under section 265-C, Cr.P.C. were delivered to the accused. However, on the request of the accused Mr. Zia-ur-Rehman Randawah was appointed as Defence counsel at State expense. On 29-3-2006 application under section 23 of the A.T.A. 1997 was moved on behalf of Muhammad Bakhsh and Tariq co-accused challenging jurisdiction of the said Court. On the next date i.e. 1-4-2006 case could not proceed as the learned Presiding Officer was not available. On 10-4-2006 certain documents were delivered to the accused persons on the demand of the learned defence counsel. Even on 30-5-2006 no material progress could be made in the trial, while on 5-2-2006 the case could not proceed due to the leave of the presiding officer. On the next dates of hearing i.e. 13-6-2006, 14-7-2006, 21-7-2006, 28-8-2006 and 2-9-2006 no material progress was made in the trial. On 4-9-2006 arguments on application under section 23 of the A.T.A. were heard while on 7-9-2006 certain other accused were summoned by the learned trial Court and said process consumed numerous dates and ultimately it was on 1-11-2006 that fresh charge was framed and for the first time prosecution evidence was summoned for 10-11-2006 on which date the defence counsel sought adjournment. Thereafter the case was adjourned to 18-11-2006 on which date copies of documents under section 265-C, Cr.P.C. were delivered to Muhammad Ramzan co-accused and the case was once again adjourned for framing of charge against Ramzan.

9. Perusal of the whole order sheet would show that barring one date no adjournment could be attributed to the petitioner and as such she cannot be blamed for causing delay in conclusion of the trial. Statutory period of six months has expired much earlier as such she is entitled to the concession of bail under the newly-added provision to section 497, Cr.P.C. Consequently we allow this application and the petitioner is granted post-arrest bail subject to her furnishing bail bonds in the sum of Rs.2,00,000 (rupees two lacs) with two sureties in the like amount to the satisfaction of the learned trial Court. N.H.Q./G-16/L Bail granted.