1. ' This is an application for bail filed by applicants Ali Khan and Manzoor, who are facing trial in Sessions Case No.215 of 2000 in an offence punishable under sections 302/34 and 109, P.P.C.
2. Relating to Crime No.36 of 2000 registered at Police Station Sijawal. The bail application on behalf of the applicants/accused was filed in the trial Court, but it was dismissed on 1-7-2003. The similar bail application has been filed, before this Court for grant of bail.
3. ' The brief facts as enunciated in the F.I.R. Are reproduced herein below in extenso: "The complaint is that, I have 8 Jirabs of land in Deh Sijawal, on which land Chakar Brohi and others had made objection and sent message to me to give him the same land as the same was adjacent to his land, upon which, I refused to give him land on this, Chakar and others were annoyed and as such not on talking terms. About five days ago, Chakar Brohi and others had exchanged harsh words. On 20-5-2000 at 2130 hourscomplainant Naseer Muhammad son of Saeed Khan by caste Brohi appeared at Sijawal Police Station and lodged the F.I.R., which reads as under in verbatim.
4. "The complaint is that, I have 8 Jirabs of land in Deh Sijawal, on which land Chakar Brohi and others had made objection and sent message to me to give him the same land as the same was adjacent to his land, upon which, I refused to give him land on this, Chakar and others were annoyed and as such not on talking terms. About five days ago, Chakar Brohi and others had exchanged harsh words with my son Sher Muhammad on the said land and also abused him.
5. About two days prior to the said days, I and my sons each Sher Muhammad, Abdul Ghafoor had built a grass but in our land for staying in day and night. After taking night meal, we used to sleep in the grass hut. As usual, today, I, my son Abdul Ghafoor, his wife Mst. Bakhtawar and my son-in-law Abdul Majeed son of Gul Khan Brohi, after taking night meal, went to sleep towards our land from the village. We were holding torches. At about 8-30 p.m. When we reached near the land of Jan Muhammad Brohi situated on the southern side path of Hamza Bhatti Sim Shakh, we saw and identified on the light of torch, four persons, each Ali Khan son of Dalail 2. Manzoor son of Jalal 3.
6. Muhammad Allam son of Ganhwar 4. Ghazi Khan son of Jalal, all by caste Brohi, resident of Jalal Khan Brohi, Taluka Mirokhan. They were armed with hatchets. They abused my son Abdul Ghafoor and asked him that you had insulted us and my brother on the matter of land and that the land was also not giving to us, as such, you should be murdered. Saying so, all the four persons caused sharp side hatchet blows to my son Abdul Ghafoor, who fell down on the ground. We raised cries of murder, then all the four accused persons decamped away towards western side along with their hatchets. We found my son was lying dead having hatchet injuries on his left side neck, ear, cheek, head and shoulder, from which blood was oozing out. Then leaving my son-in-law Abdul Majeed and daughter-in-law Mst. Bakhtawar over the dead body 'of my son, now came at the police station for lodging the report that the above named accused in furtherance of their common intention at the abatment of Bakhir son of Haji Z. Dalail son of Ganhwar by caste Brohi, resident of village Jalal Khan Brohi, Taluka Mirokhan committed the murder of my son Abdul Ghafoor by causing him sharp side hatchet bellows. I am complainant, justice be done."
7. ' Mr. Ahsan Ahmed Qureshi, learned counsel for the applicants contended that both applicants were arrested on 25-5-2000 and they are in custody and no progress is made by the trial Court, to conclude the trial. It is further urged by the learned counsel that the bail application on behalf of the applicant was filed, but the same was disposed of with a direction to the trial Court to examine the material witnesses within three months. It is further pointed out by the learned counsel that the trial Court at Shandadkot was vacant as such the case was transferred to the Court of learned 1st Additional Sessions Judge, Larkana vide order dated 3-5-2002 passed by this Court in Cr. B.A. No.191 of 2002. After direction by this Court not a single witness has been examined and due to non- compliance of the direction of this Court bail application on behalf of the applicants was filed in the Court of 1st Additional Sessions Judge, Larkana, but the same was rejected by the impugned order. It is further pointed out that the trial Court had issued the process against prosecution witnesses, but after examination of the process server namely PC Mir Muhammad it is brought on record that the complainant Naseer Muhammad and P.W. Abdul Majeed have shifted towards some unknown place and their whereabouts are not known to any one. It is argued by the learned counsel that since direction has not been complied and applicants/accused since their arrest are in custody, therefore, a case of hardship is made out for grant of bail. Mr. Qureshi has relied upon a case of Anwar v. State (2003 PCr.LJ 1416) and case of Shabir v. State (2003 PCr.LJ 1521).
8. ' Conversely Mr. Syed Mehboob Ali Shah, learned State counsel has vehemently opposed the bail application and submits that on merits bail application of the applicants was not pressed and directions were sought for examination of the material witnesses within three months and trial Court tried his level best to record the evidence. Process was returned with the endorsement that the complainant Naseer Muhammad and P.W. Abdul Majeed are not traceable and they have shifted to unknown place after committing an offence. It is pointed out by Mr. Shah that the trial Court had recorded the evidence of eye-witnesses namely Mst. Bakhtawar and she has fully implicated the present applicants/accused being one of the eye-witness of the incident. It is further urged by the learned State counsel that on merits they have been refused bail by the trial Court and bail application preferred before this Court was not pressed on merits as they are specifically nominated with direct role of causing the death of deceased Abdul Ghafoor. Mr. Shah learned State counsel has relied upon the case of Mst. Parveen Akhtar v. State (2002 SCM R 1886) and case of Razzak Ahmed v. State (2002 SCM R 1876).
9. ' I have heard learned counsel for the parties and have gone through the record. Although the complainant Naseer Muhammad and P.W. Abdul Majeed are not traceable, as they have absconded away to unknown place after commission of some offence as reported by the process server, but after direction of this Court the trial Court had recoded the evidence of one eye-witness namely Mst. Bakhtawar. She has implicated the applicants/accused with the commission of the offence and at least evidence of one eye-witness is available on the record, which cannot be discarded at this stage. Besides in the F.I.R. Applicants Ali Khan and Manzoor were armed with hatchets and they abused Abdul Ghafoor on the land matter and all the four persons armed with hatchets caused sharp side hatchet blows to the deceased. The deceased sustained hatchet injuries on his left side neck, ear, cheek, head and shoulder from which the -blood was oozing and the applicants in furtherance of their common intention caused sharp side hatchet blows to the deceased. As per order of the Court it is observed as under:-- "However, the record shows that with the efforts of the Court one of the most important witnesses i.e. Bakhtawar who was the wife of the deceased and was cited as the eye-witness of the incident has very recently i.e. On 27-6-2003 been examined. She has fully implicated the present applicants/accused by deposing that both of them had caused hatchet injuries to the deceased A Abdul Ghafoor as a result of which he died instantly."
10. It is further observed by the trial Court that the efforts for examining the other witnesses are also constantly being made for conclusion of the trial. As per prosecution case, there is overwhelming evidence against them to prima facie to connect them with the commission of crime. Mere direction of this Court for conclusion of the trial within specified time will not diminish the prosecution case. It needs to be clarified that indulgence shown by the Superior Courts by issuance of such directions for trial Court to conclude cases within some specified period are only meant and mend to expedite the case of the accused and not to arm them with so-called new ground for bail in case of noncompliance of such directions. The trial Court had already taken the efforts for procuring the evidence of prosecution witnesses. It is expected that the trial Court will initiate more active efforts to record the evidence of the prosecution witnesses expeditiously. Thus for the foregoing reasons, the applicants are not entitled for the grant of bail merely on the ground of non- compliance of the directions of this Court for recording the evidence of material witnesses within a period of three months, as there is overwhelming evidence against them as one of the eye- witnesses Mst. Bakhtawar had implicated the applicants/accused with specific part of infliction of the hatchet blows to the deceased. Resultantly, Criminal Bail Application No.S-386 of 2003 is dismissed.