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Criminal Miscellaneous No. 23341 B of 1983, decided on 2nd , October, 1983.

Criminal Procedure Code (V of 1898)--

---S. 497--Penal Code (XLV of 1860), S. 148/302/149--Bail--Delay in trial--Grant of bail--Accused behind bars for more than 1] years--Trial of case not likely to commence in near future--All co-accused already on bail--Accused might have been fired at by deceased if he would roc fire at deceased--No report of Forensic Expert available connecting crime weapon with offence--Accused, held, entitled to bail in circumstances.

M. Dilawar Mahmood for Petitioner.

Sh. Naseer-ud-Din for the State.

Muhammad Nawaz petitioner is accused with others of the commission of offences under section 302/148/149, P.P.C. vide F.I.R. No. 15 of 1982, registered on 10-2-1982 at Police Station Sahiwal, District Sargodha for the murder of Muhammad Hayat. The other seven co-accused are already on bail. The petitioner was attributed role of firing rifle shot on the deceased.

2. Learned counsel for the petitioner pointed out that the petitioner was refused bail by this Court on 24-5-1983. It was, however, observed in the order that if the trial of the case was not commenced or concluded before 22-7-1983 the petitioner may repeat application for bail. It was submitted that about two years have elapsed since the date of petitioner's arrest but the trial of the case had not even commenced and there is no likelihood of its commencement in the near future, as such, the petitioner is entitled to be released on bail on this ground alone. It was also submitted that during the police investigation it was found that Muhammad Hayat deceased had fired first shot and the petitioner fired thereafter and in case he had not fired at that time he would have been done to death by Muhammad Hayat.

3. Sh. Naseer-ud-Din, Advocate, appearing on behalf of the State did not oppose this petition and after going through the 'Zimnis' recorded by the Investigating Officer stated that it was a case of further inquiry entitling the petitioner concession of bail. '

4. I have heard learned counsel for the parties and find that the petitioner's earlier application was dismissed by me on 24-5-1983 with the following observations:-

" However, in view of the fact that the petitioner was arrested on 21-2-1982 and more than a year has already elapsed but the trial of the case has not even commenced. It is observed that if the trial is not commenced or concluded before 22-7-1983 he may repeat application for bail."

As the trial of the case did got commence the petitioner has re-applied for his release on bail.

5. A report from the learned Sessions Judge, Sargodha was called for as to when the trial of the case was likely to commence in the case. It was reported by him that Mian Muhammad Nawaz Nekokara, Additional Sessions Judge, Sargodha to whom the case was entrusted had been transferred and on the appointment of his successor the case would be fixed for trial.

6. In view of the pendency of murder cases in the Sessions Court, Sargodha it appears that the trial of the case would not commence in the near future although the petitioner is behind the bars for the last over one and half year; since the date of his arrest without trial. There is no allegation that the petitioner had been responsible for delay in the trial of the case.

7. The Investigating Officer declared six of the accused having been found falsely implicated in the case and they were released on bail. Muhammad Sadiq another co-accused was also allowed bail by this Court and all the accused except the petitioner are on bail. Learned counsel for the State read through Zimni No. 15, dated 24-4-1982 wherein it was recorded by the Investigating Officer that in case the petitioner had not fired with his gun there was possibility that Muhammad Hayat deceased would have fired and killed him. Learned counsel for the State also could not point out as to what was the result of Forensic Science Laboratory regarding the rifle allegedly recovered from the petitioner as there was no report received connecting the weapon of crime.

8. For all the facts and reasons highlighted above 1 direct that the petitioner be released on bail provided he furnishes security in the sum of Rs.50,000 (Rupees fifty thousands only) with one surety in the like amount to the satisfaction of A. C . /M . I . C . Shahpur, District Sargodha.

9. It is, however, observed that there will be no bar on the powers of the learned trial Judge to consider the question of cancellation of bail of the petitioner if after recording some evidence or otherwise it is considered expedient in the interest of justice..

S.A.

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