1. ' Applicant All Madad son of Abdul Sattar seeks bail in Crime No,16 of 1991 registered against him along with other co-accused at P.S. Dakhan in an offence punishable under section 302/34, P.P.C.
2. The F.I.R. Was registered on 13-3-1991 at the complaint of Abdul Majeed. The bail application on behalf of the applicant/accused was placed in the trial Court, which was dismissed on 23-12-2002.
3. The applicant has filed similar application before this Court for grant of bail.
4. ' The facts of the prosecution case as reflected in the F.I.R. Are that on the day of incident complainant along with his brother Buxal and son Mumtaz Ali went to Mehboob Ali to meet him where they came to know that Mehboob Ali had gone to lands. Thereafter all the above mentioned persons went to Mahboob Ali, where he was working in the land, when they reached near the lands of Abdul Ghafoor, it was at 8 a.m. It is alleged that accused Abdul Sattar, Yar Muhammad and Ali Madad armed with hatchets arrived at the land and started abusing Mehboob Ali and declared that he would not be spired. The complainant and the above mentioned witnesses tried to intervene. Thereafter Abdul Sattar inflicted hatchet blow to Bukhshal, Yar Muhammad caused hatchet blow to Bukhshal and accused Ali Madad (applicant) also caused hatchet blow to Bukhshal. The complainant and other prosecution witnesses could not rescue the injured, who fell down on the ground and the above mentioned accused ran away while raising slogans. The complainant and the P.Ws. Saw that Bukhshal has sustained injuries on his various parts of his body and succumbed to the injuries. The necessary investigation was conducted and charge- sheet was presented in the Court having jurisdiction and the applicant/accused was shown as absconding accused.
5. ' Mr. Abdul Qadir Abro, learned counsel for the applicant has contended that the applicant/accused was arrested on 19-10-1999 and since then he is in custody and rioting in jail without trial as the trial Court has not examined a single witness and the applicant/accused is innocent and the case of the applicant/accused requires further inquiry. It is further urged by the learned counsel that co-accused Abdul Sattar has been released on bail by the trial Court and the case of the applicant is identical to that of co-accused. In support of his proposition learned counsel has relied upon the case of Sharbat v. State 2003 M LD 1191; Anwar Ali v. State 2002 PCr.LJ 186 and Ahrar Muhammad v. State PLD 1974 SC 224.
6. ' Mr. S. Mehboob Ali Shah learned State Counsel has vehemently opposed the application on the ground that a fugitive from law loses some of his normal rights. It is further urged that the applicant/accused has sought ten adjournments and the prosecution witnesses were present in the trial Court and by an act of the applicant/accused delay has been caused. It is further pointed out by him that specific role of infliction of hatchet is attributed to the applicant/accused and the applicant/accused has remained absconder for nine years and bail application of co-accused Abdul Sattar was allowed only on statutory ground as he was arrested on 6-3-1999 and by remaining continuous in jail, concession of bail was extended under third proviso to section 497(1), Cr.P.C. Mr. Shah learned State Counsel has relied upon the case of Sher Ali alias Sheri v. State 1998 SCM R 190. Mr. Shah submits that the case of applicant is not identical to the case of co-accused Abdul Sattar, therefore, he is not entitled for the concession of bail.
7. ' I have given full consideration to all these contentions raised by the learned counsel for the respective parties and also gone through the case-law cited at the Bar.
8. ' In the case of Sharbat Ali v. State, the bail plea was sought on the ground that they are in custody for a period of about one year and there is reasonable progress in the trial and the other co- accused were released on bail by the trial Court on the ground of statutory delay and Sharbat Ali and Haji Mithal were declared as proclaimed offenders. They were arrested on 4-4-2000 and since they are in custody. The incident of the cited case took place on 24-3-1999 and the applicant absconded away and were arrested after three years and they remained in custody for a period of one year. In the present case the F.I.R. Was recorded on 13-3-1991 and the applicant/accused was shown as proclaimed offender and thereafter he was arrested on 19-10-1999 after 9 A years and the specific part of inflection of the hatchet is attributed to the deceased, but in the cited case the applicant issued a challenge and co-accused Ghulam Muhammad fired from his rifle directly at Rahib and other co-accused pointed their weapons at the complainant party, but they did not make any fire and they went away on the same motorcycle.
9. ' In the case of Anwar Ali v. State the bail was sought on the ground of statutory delay as the accused were behind the bars for more than two years and. The applicant/accused had not sought any adjournment. As per F.I.R. Of the cited case, the applicants were charged for committing an offence under sections 6, 7, 9, 12, 14, 15 of the Control of Narcotic Substances Act, 1997, as the police party found four persons there who were apprehended and from whom 20 Kgs.
10. Of Charas was lying in front of accused Anwar Ali and Hamid Ali Shah. 250 grams of heroin powder was recovered from Ali Bux and 250 grams from Ghulam Qader, 10 grams of Charas was sealed and 10 grams of heroin powder were put in polythene bags for chemical analysis. The bail application was moved on the ground of delay, which was dismissed by the trial Court. The bail rejection order was challenged before this Court and while considering all aspects of the case it was observed that the accused are behind the bars for more than two years and the case has not yet proceeded and in fact the delay has occasioned due to no fault of the accused and the concession of bail was extended. Lastly in case of Ahrar Muhammad v. State the Honourable apex Court has held that inordinate delay in prosecution case amounting to abuse of process of law and the delay can be treated as sufficient ground for grant of bail and the case was dragged in the Court for more than five years and concession of bail was denied. In the above mentioned authority several famous authorities have been cited, but as per facts of the case, 14 persons were arrested on 25th May, 1968 and 31st May, 1968, on the basis.Of a F.I.R. Filed on 24-5-1968 alleging that at about 10-30 p.m. Of that day some 15 to 20 unknown persons had broken into the house of the complainant where two other unknown persons had taken shelter. Later it was found that one of the said two persons was lying near the gate of Quarter No,35 in an injured condition and the second man was lying seriously wounded some 200 steps away at Chowrangi. The bail plea of the applicant/accused was moved in the trial Court, which was dismissed and the applicant inoved bail application before the High Court on the ground of delay, but the same too was dismissed. The applicant Ahrar Muhammad and others preferred bail application before the Honourable Supreme Court being Cr. Appeal No,K-6 of.1974 and the concession of bail was extended on the ground that there is inordinate delay, which can be termed as an abuse of process of law and the majority of the adjournments were not sought by the defence and the prosecution dragged of for more than five years whilst the accused was denied bail. The facts and the circumstances mentioned in the above authorities are not identical to the present case as 10 adjournments were sought on behalf of the applicant/accused, hence delay is on the part of applicant/accused and the accused has remained fugitive from law for more than 8 years after commission of the F.I.R. The case of the applicant is that he was armed with hatchet and caused hatchet injuries and participated in the commission of crime, therefore, the case-law cited by the learned counsel for the applicant is based on different proposition of fact and law and the same authorities are not applicable in the instant case. Prima facie there is overwhelming evidence with the prosecution to substantiate the charge against the applicant and co-accused Abdul Sattar was released on bail on statutory ground whereas the applicant/accused remained fugitive from law for a period of more than 8 years and after his arrest he has sought 10 adjournments and delayed the prosecution case. The prosecution witnesses were in attendance on different dates of hearing and due to his acts the case was being adjourned by the trial Court.
11. ' In view of the foregoing reasons, while relying on the case of Sher Ali v. State 1998 SCM R 190, the applicant/accused is not entitled for the concession of bail. Resultantly, the bail application is dismissed. The trial Court however, is directed to conclude the trial of the case expeditiously under intimation to this Court, as the commission of the offence had taken place in the year 1991.