Syed ABDUL BAQI SHAH vs The STATE

MANZOOR HUSSAIN SIAL, J.---This petition for leave to appeal is directed against the order of the learned Single Judge of the Baluchistan High Court dated 1-11-1994, whereby he dismissed the application of Syed Abdul Baqi Shah, petitioner, in a case under section 302/324, Qisas' and Diyat Ordinance read with sections 147, 148 and 149, P.P.C. Registered on 2-8-1992 vide F.I.R. No.85/92 at Police Station Yaru, District Pishin.

2. The allegation against the petitioner is that on 2-8-1992 at about 9 p.m. He alongwith Syed Ghulam Nabi, Syed Abdul Jabbar, Syed Abdul Wali and eight other accused after having themselves armed with deadly weapons blocked the way of Syed Aslam, Syed Yaqoob, Syed Bashir Ahmad, Syed Noor Din and Syed Nasrullah and attacked them when they were coming from Quetta in a Pick-up near Mandan Railway Crossing. As consequence of injuries suffered by them at the hands of the assailants, one of the injured, namely, Syed Muhammad Aslam died in the hospital. As per prosecution version, the petitioner gave repeated blows with a stick on the head of the deceased whereas Abdul Jabbar accused gave dagger blows in the abdomen of the deceased. The medical report, however, shows that there were six injuries, all caused by sharp- edged weapon and none caused with blunt weapon on the head.

3. The petitioner was arrested on 15-11-1992, while other accused absconded. He applied for his release on bail pending decision of the case, but his application was rejected by the learned Additional Sessions Judge-11, Quetta on 19-10-1993.

4. The trial of the case could not be concluded within statutory period of to years, he moved another application for his release on bail, pending trial of the case but the same was rejected on 1-11-1994 by a learned Single Judge of the Baluchistan High Court, as aforementioned.

5. In response to the notice issued by this Court to the respondent, Ch. Ijaz Yousuf, learned Additional Advocate-General, on behalf of the State and Mr. S.A.M. Qadri, Advocate for the complainant entered appearance in this case.

We heard learned counsel for the parties at some length and have gone through the documents on the file with their assistance.

No doubt more than the statutory period provided under third proviso to section 497(1), Cr. P.C. Has elapsed since the petitioner's arrest but the question is whether he is entitled to the benefit under the relevant provision of law. It would be useful to reproduce hereunder third proviso to the amended section 497, Cr. P.C.:-- Amendment of section 497. Act V of 1898.--In the Code of Criminal Procedure, 1898 (Act V of 1898), in section 497, in subsection (1) in the second proviso, for the full-stop at the end a colon shall be substituted and thereafter the following provisos shall be added; namely-- "Provided further that the Court shall, except where it is of opinion that the delay in the trial of the accused has been occasioned by an at or omission of the accused or any other person acting on his behalf or in exercise of any right or privilege under any law for the the being in force, direct that any person shall be released on bail--

(b) who, being accused of an offence punishable with death, has been detained for such offence for a continuous period exceeding to years and whose trial for such offence has not concluded."

The perusal of the above provision of law certainly extends in favour of the accused person a statutory right to be enlarged on bail, if he is charged with an offence punishable with death and period exceeding to years had elapsed since his detention but the trial has not concluded, provided the delay in the trial has not occurred by an at or omission on his part. It is a matter of record that more than one adjournments of the case had taken place on account of petitioner's counsel being not available: therefore, the benefit of third proviso to section 497(1), Cr. P.C. Cannot be extended in favour of the petitioner as the delay in the trial of the case had partly occasioned on account of the adjournments secured by his counsel.

6. On merits of this application, however, we primafacie find that the eye--witnesses have categorically deposed that the petitioner gave repeated stick blows on the head of the deceased, but no injury whatever blunt or sharp was found on the head of the deceased by the doctor who medically examined him. He rather found all the six injuries suffered by the deceased having been caused with sharp-edged weapon. The benefit of the conflict in the ocular and medical evidence from the tentative assessm ent thereof, will weigh in favour of the petitioner while disposing of his application for bail.

We are mindful of the established rule of criminal administration of justice, that primarily the facts and circumstances of each case govern the situation and attract the applicability of a particular principle of law. Applying this dictum in the instant case, we are of the view, that in the circumstances of this case, the petitioner is entitled to be released on bail at this stage. We accordingly, convert this petition into appeal and allow it.

The petitioner shall be released on bail; provided he furnishes bail bond in the sum of Rupees five lakhs (5,00,000) with to sureties each in the like amount to the satisfaction of the learned Trial Court.