KHALID MAHMOOD ALIAS KAKA AND 4 OTHERS Versus THE STATE
ORDER
Khalid Mahmood alias Kaka, Abdur Razzaq son of Muhammad Hussain, Abdur Razzaq son of Ghulam Sarwar, Abdul Hafeez and Muhammad Akram petitioners alongwith 6 others stand charged with the murders of Masood, Muhammad Hanif and Imdad and for murderously assaulting Zulfiqar, Gulzar, Daood and Ishfaq with fire‑arms on 23‑5‑1985 over an election enmity. Excepting Abdur Razzaq son of Muhammad Hussain the other petitioners are attributed fire‑arm injuries to Muhammad Masood and Muhammad Hanif deceased as well as the injured P.Ws. Abdur Razzaq son of Muhammad Hussain is alleged to have caused fire‑arm injuries to Gulzar P.W.
2. It is contended by the learned counsel for the petitioners that according to the final investigation which has been confirmed by D.I.‑G. and I.‑G. Police the complainant party was aggressor and had first opened attack on the petitioner's party and had injured them for which a cross‑case has been registered against them and challan has also been submitted under sections 148, 302/307/149, P.P.C. and excepting Gulzar all the other accused of the said case have already been released on bail. It is next contended that since the investigation agency has categorically held the complainant party as aggressor the petitioners are entitled to the grant of bail under section 497(2), Cr.P.C. It is further stated that Mr. Justice (Rtd.) Mazhar‑ul‑Haq in his order, dated 26‑10‑1986 passed in Criminal Miscellaneous No. 2793‑B of 1986 had observed, 'that prima facie, it appears to be a case of free fight in which both the parties tested strength against each other. As such, it would be a case of individual liability'. It is contended that the petitioners' side had received grievous and simple fire‑arm injuries at the hands of the complainant party. Lastly, bail is claimed on the ground of delay in the conclusion of the trial. It is stated that the petitioners were arrested on 23‑5‑1985 and though a period of two years has expired the trial has not yet commenced and that there is a likelihood of further delay because the learned trial Judge has gone to perform Haj.
3. Learned counsel for the complainant has vehemently contested the application. According to him the delay is attributable to the petitioners because it was on their application that re‑investigation was ordered. He states that as the learned trial Judge is expected to return during this month (August, 1987) no further delay shall take place in the conclusion of the trial.
4. Mr. Farooq Bedar, learned A.A.‑G. states that the case was investigated twice on the request of the complainant party while the third investigation was ordered on the request of the petitioners. He supports the conclusion arrived at by Khadim Hussain D.S.P. holding that the occurrence was the result of a free fight between the parties and that the motive set up by the prosecution in the case F.I.R. 74, dated 23‑5‑1985 against the petitioners was false. He further submits that I.‑G. Police has approved filing of challans of both the cases in the Court..
Even if, the merits of the case are not adverted to, the petitioners have earned the right of bail because of the non‑disposal of the case within the statutory period. They were arrested in May, 1985 and the trial has not even commenced so far. The contention of the learned counsel for the complainant that the petitioners were responsible for the delay because of their asking for the` 3rd investigation is not appealing. They did ask for re‑investigation but they had not desired that it should linger on for an indefinite period. The Investigating Officer could have submitted his report after recording the statements of the witnesses of the petitioners which according to them was done without any undue delay.
5. Keeping in view the delay taking place in the conclusion of the trial the petitioners are admitted to bail in the sum of Rs.1,00,000 ? (one lac) each with two sureties each in the like amount to the satisfaction of A . C . , Faisalabad.
S.G.D./K‑55/L ???????????????????????????????????????????????????????????????????????????????????????????????? Bail allowed.