1992 P Cr (PLP)

Maqsood Shah, petitioner, has moved this petition for bail in a case registered against him and others at Police Station Saddar, Bannu, under sections 148,302, 404 read with section 149, P.P.C.

2. The prosecution case in brief is that on 16th August, 1986, at 7-00 a.m. soon after the Eidul Azha congregation in the village mosque, Akhtar Riaz Shah, Sardar Riaz Shah, Abdur Riaz Shah, Said Riaz Shah, sons of Muhammad Ayaz Shah, and Gul Riaz Shah son of Muhammad Roshan Shah, formed themselves into an unlawful assembly at the bidding of Maqsood Shah, petitioner, and his brother Muhammad Ayaz Shah, and in prosecution of the common object of the assembly that they had formed, opened firing at Fazlur Rehman and Atlas Shah, who fell dead at the spot. The assailants, after the occurrence, made good their escape. The effective firing has been attributed to the assailants other than the petitioner, who are in abscondence till date. The motive set up in the F.I.R. is a dispute over landed property.

3. In an earlier round, the concession of bail was extended to the petitioner by the learned Sessions Judge, Bannu, inter alia, on the ground that only a role of Lalkara had been attributed to him. Thereupon, Fazal Qader, complainant, moved two Petitions Nos.137 and 140 of 1986 for cancellation of bail granted to the petitioner in this case (F.I.R. No.137) and in another case F.I.R. No.150 for murderous assault after 16 days of his release. The two petitions came up before S. Usman Ali Shah, C.J., as his Lordship then was, who by his order, dated 28th April, 1987, cancelled the bail of the petitioner. The only ground which found favour with his Lordship was in the following terms:-- .that after 16 days of their release (absconders and the petitioner) by this Court, they have committed an offence on 22-4-1986 under sections 302 and 429 read with section 34, P.P.C. vide F.I.R. No.150, dated 23-4-1986 Police Station Saddar, Bannu, lodged by Mst. Najma Parveen complainant'

4. The petitioner is lodged in jail since then. After his failure to secure bail from the Court of Additional Sessions Judge, Bannu, in this round, the petitioner has come up to this Court.

5. Mr. Sanaullah Khan Gandapur, Advocate, appearing on behalf of the petitioner, has pressed the plea of bail on the grounds; firstly, that the petitioner has been merely charged for instigating the absconders without any effective role in the murders and, secondly, that even after his petition for bail was turned down by the then learned Chief Justice, delay of 3-1/2 years had occasioned in the-trial.

6. On the other hand, the plea of bail was opposed by Mr. Muhammad Khan Khakwani, learned counsel for the State, on the ground that the petitioner was not entitled to bail on the ground of delay in the conclusion of his trial within the period of two years as his case falls within the mischief of fourth proviso to section 497(1), Cr.P.C. Reliance was placed on the earlier order, dated 28th April, 1987 passed by the then learned Chief Justice. In support of this contention, he also relied on Moundar and others v. The State P L D 1990 SC

934. Lastly, he contended that the co-accused of the petitioner who are closely related to him are still out-laws and, therefore, the benefit of delay in his trial could not be extended to him.

7. The ratio in the case of Mounder, cited at the bar by the learned counsel for the State, clearly is that the category of previous convicts having been separately mentioned as disentitled to the privilege of release on bail on the ground of statutory delay, the opinion whether the person is hardened, desperate or dangerous criminal falls under another category and. for that purpose not only the other criminal cases registered before or after the case in which bail is claimed may be taken into consideration, but it can take into consideration the facts and circumstances of the prosecution case in which the person seeking release on bail is facing trial. In so far as the allegations in case F.I.R. No.150 are concerned, the learned Chief Justice appeears to have not been properly assisted, for, the petitioner's name does not figure in that case as one of the assailants. In consequence, even if the Court takes into consideration the registration of case F.I.R. No.150 qua the co-accused of the petitioner, it could not possibly do so against the petitioner.

8. The next question is whether there is sufficient material in this case to form an opinion that the petitioner was a previous convict or a criminal of one of the categories described in fourth proviso to section 497(1), Cr.P.C. Admittedly he is not shown to be previous convict. The role attributed to the petitioner in the case in hand is not such as to dub him as a harddned, desperate or dangerous criminal .

9. The last contention raised on behalf of the State that abscondence of co-accused of the petitioner disentitled him to claim bail on the ground of delay stands repelled by a recent pronouncement in Iftikhar Ahmad v. The State 1990 S C M R 607.

10. In the circumstances, I would admit the petitioner to bail in the sum of Rs.1,00,000 with two sureties in the like amount each to the satisfaction of the learned Sessions Judge, Bannu.

11. By my short order, dated 21-10-1990, I admitted the petitioner to bail in above terms. Above are the reasons for recording that order. H.B.T./1300/P Bail granted