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Criminal Miscellaneous No. 2232/13 of 1984, decided on 1st October, 1984.

‑‑‑S. 497(1), proviso third‑‑Penal Code (XLV of 1860), Ss. 302/34, 109 & 120‑B‑‑Bail, grant of‑‑Occurrence taking place in Chowk of town‑ Co‑accused released on bail‑‑Complainant also lodged private complaint with Illaqa Magistrate‑‑Delay in final disposal occurred because of private complaint and many adjournments to procure attendance of accused‑‑ Accused, held, entitled to benefit of proviso 3 of subsection (1)of S.497,Cr.P.C----‑Bail granted.

M.A. Zafar and Ijaz Hussain Batalvi for Petitioner.

Ehsan Qadir Shah for the Complainant.

Altaf Muhammad Khan for the State.

Date of hearing: 30th September, 1984.

This is a petition for bail on behalf of Muhammad Ahmad accused who alongwith others is being prosecuted in a case pertaining to F.I.R. No. 185, dated 8‑7‑1982, registered at P.S. Cantt, Sargodha, under section 302/34/109/120‑B, P.P.C.

2. The precise allegation against the petitioner and his co‑accused is that while armed with fire‑arm, they intentionally murdered Muhammad Ikram deceased on 8‑7‑1982, at about 11‑30 a.m. near the Service Station close to Calcutta House, Sargodha. The occurrence was witnessed by Manazar Ali complainant as well as Riaz Hussain and Nazir Hussain P. Ws. This petition for bail is pressed only on the ground of delay in the final disposal of the case against the petitioner. All other co‑accused of the petitioner are already on bail, having been declared innocent by the police. As such, I need not state the facts of the case in detail.

3. As stated above, the occurrence took place on 8‑7‑1982 and the petitioner Muhammad Ahmad was arrested on 21‑7‑1982. The case remained pending in the Court of learned Sessions Judge, Sargodha. It came up for hearing on 5‑1‑1984 before him when the copies of the previous statements were disbursed to the accused and the witnesses were summoned for evidence on 17‑3‑1984. The case was taken up on that date but Ahmad Qureshi accused could not be brought from jail. The case was, therefore, adjourned to 18‑3‑1984 and then to 9‑6‑1984. On that date the learned Sessions Judge recorded an interim order stating therein that Mr. S.A. Kasar, Advocate, counsel for the accused, had sent a telegram from London saying that he was sick and was not in a position to attend Court to defend the accused in Sargodha for another one month. In the second paragraph of this order, it was recorded that Manazar Ali complainant had lodged a private complaint with regard to the present occurrence which has also been sent up for trial by the Illaqa Magistrate on that very day and as such, in the presence of the private complaint, the case could not proceed. In the opinion of the learned Sessions Judge, the private complaint created a hindrance in the trial of the case which had earlier been adjourned. It may here be added that after recording of the F.I.R. police found five accused named therein innocent. Instead, some other accused were challaned as a result of which Manazar Ali complainant filed a private complaint against the accused named in the F.I.R. After recording of the preliminary evidence, the Court found a prima facie case against the accused named in the complaint and. summoned them to face trial under section 302/34/109/120‑B, P.P.C. They were summoned to appear in Court on 23‑6‑1984. The accused ultimately appeared after various adjournments in Court on 5‑8‑1984, on which date the previous statements of the witnesses were disbursed to them and the case was adjourned for evidence to 19‑9‑1984. On that date, there was an application on behalf of one accused that he was admitted in Mayo Hospital, Lahore and, therefore, was unable to attend. As a result of this, the case was adjourned to 4‑10‑1984, for the appearance of the said accused in the Court. In view of the above facts, it is argued by the learned counsel that the delay in the completion of trial was not on account of the fault of the accused and as such, the petitioner was entitled to the benefit of proviso 3 of subsection (1) of section 497, Cr.P.C. The learned counsel for the State and the learned counsel for the complainant have opposed this petition. It is contended by the learned counsel for the complainant that the case was of a serious nature; that the occurrence took place in the Chowk of Sargodha Town and the petitioner was a dangerous accused and as such, in view of proviso 4, the petitioner is not entitled to bail.

4. I have considered the argument of all the learned counsel. There is no evidence that Muhammad Ahmad petitioner was a previous convict or that he was a dangerous person. The mere fact that he was involved in a murder case would not mean that he was a dangerous person and therefore, not entitled to bail. The allegation against him will be proved A during the trial after recording of the evidence. At this stage, it cannot be said that he was a dangerous person because of his involvement in the instant case. I have also gone through all the interim orders recorded by the learned Sessions Judge in this case. The case was adjourned at the instance of the accused only on two occasions once on 9‑6‑1984 when their learned counsel was sick and under treatment in London and secondly on 19‑9‑1984, when another accused was ill and admitted in Mayo Hospital, Lahore. It could not, therefore, be that the delay in the trial of the case had been occasioned by any act or omission on the part of the accused or any other person acting on his behalf. On the other hand, I find that the delay occurred primarily for the reason that the complainant filed a private complaint and it took many adjournments to procure the attendance of the accused. I, therefore, find that the petitioner is entitled to the benefit of proviso 3 of subsection (1) of section 497, Cr. P.C. Reliance in this behalf is placed on Nazir Hussain v. Zia‑ul‑Haq 1983 S C M R 72 and Saleh Muhammad v. The State 1983 S C M R 341.

5. As a result of the above discussion, the petitioner Muhammad Ahmad is admitted to bail till the disposal of the case on his furnishing of bail bonds in the sum of Rs.10,000 (Rupees ten thousand) with one surety in the like amount to the satisfaction of A.C., Sargodha.

I.D. Bail allowed.

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