1999 P Cr (PLP)

The petitioner is involved in case F.I.R. No.248 of 1996, dated 20-5-1998 for offence under sections 302/148 and 149, P.P.C. registered at Police Station Chunian, District Kasur.

2. Briefly, the prosecution case as given in the F.I.R. is that Mst. Sakina Bibi, the complainant on 19-5-1995 at Shamwela alongwith her son Asghar Ali was on her way to Kot Bodla to see one Allah Ditta Dogar. When she reached in the field of Bagh Ali Shah, from the nearby field, Siddique alias Baggi, armed with rifle, Rafique with gun and Nazir Ahmad armed with rifle and Pir armed with .12 bore gun were thrashing the wheat, Siddique alias Baggi raised a Lalkara to Asghar Ali, the complainant's son to teach him a lesson of making quarrel on which Muhammad Siddique fired with his rifle which hit Asghar Ali in his belly. Nazir fired with his rifle which hit Asghar Ali on the right thigh Mukhtar fired with his .12-bore gun which hit Asghar Ali on the back side of his left knee. Rafique and Peera fired with their respective weapons which hit Asghar Ali on his buttock. Asghar Ali fell down on the ground. The complainant made hue and cry which attracted Allah Ditta and Siddique. The assailants decamped. The motive behind the occurrence is that two days ago Siddique and Asghar Ali had a quarrel and because of that Siddique alias Baggi etc. injured the complainant's son who died on the spot because of the injuries.

3. Earlier, the bail application of the petitioner was dismissed by the learned Additional Sessions Judge, Kasur vide order, dated 6-4-1998.

4. Bail is pressed on the grounds that the petitioner is behind the bar for a period of more than two years and that there is delay in lodging the F.I.R. and that there are contradictions in the ocular version and the medical evidence and that nothing has been recovered from the petitioner and that the petitioner has been implicated in the case due to previous enmity.

5. The petition is opposed on the grounds that the petitioner is named in the F.I.R. with specific role of firing and that the offence with which the petitioner stands charged fall within the prohibitory clause of section

497. Cr.P.C.

6. I have given due consideration to the valuable arguments on both the sides.

7. Admittedly, the petitioner is behind the bar since the date of his arrest and a period of more than two years has passed but the trial has not yet concluded. His case, therefore, falls within the purview of 3rd proviso to section 497, Cr.P.C. which lays down that where the Court is of the opinion that the delay in the trial of the accused has not been occasioned by an act or omission of the accused or any other person acting on his behalf, the accused shall be released on bail if the offence with which he stands charged is punishable with death and has been detained for a continuous period exceeding two years.

8. The Honourable Supreme Court of Pakistan in the case of Zahid Hussain Shah v. The State PLD 1995 SC 49 while examining the application of 3rd proviso to section 497, Cr.P.C. had observed that the right of the accused to seek bail would not be left to discretion of the Court and would be controlled by the relevant provision. This observation has been approved by their Lordships of the Honourable Supreme Court in the case of Abdur Rashid v. The State 1998 SCMR 897.

9. This being the position of law, this petition is allowed and the petition-er is granted bail subject to his furnishing bail bond in the sum of Rs.50,000 with one surety in the like amount to the satisfaction of the trial Court. N.H.Q./M-895/L???????????????????????????????????????????????????????????????????????????????????????????? Bail allowed.