1. ' S. ALI ASLAM JAFRI, J.--- Applicant Gul Baig alias Nangi is facing trial in Crime No,170 of 1999 of Police. Station New Faujdari Shikarpur for offences under sections 302, 324, 337-H(ii), 147, 148 and 149, P.P.C. In the Court of learned. Special Judge, S.T.A. Shikarpur. Bail is being sought merely on the ground that applicant who was arrested on 13-10-1999 is continuously in custody for more than last four years and the case against him has not proceeded so far.
2. ' The allegation against the applicant is that on 20-9-1999 complainant Azizullah, his brother Ali Hassan, step-brother Rasool Bux and maternal-uncle Murad Ali were sitting on a cot outside a Mosque when at about 11-00 a.m. Six persons namely (1) Ali Hassan, (2) Shahzor, (3) Hazari all armed with kalashnikovs, (4) Shahan (5) Gul Baig alias Nangi (applicant) and (6) Lal Khan armed with pistols and three unidentified persons armed with guns came on motorcycles and fired upon the complainant and others indiscriminately with their klashnikovs and pistols whereas the person having guns fired in the air. Complainant, his maternal-uncle Murad Ali and step-brother Rasool Bux in order to save them went running inside the mosque whereas Ali Hassan and Haji Hamal sustained fire-arm injuries out of whom Ali Hassan expired at the spot. Due to cries and fire-arm reports people working in the adjoining field gave `Hakals' and came running to the place of incident due to which the culprits fled away on their motorcycles. The motive as shown in the F.I.R. Is bloody feud between the people of Jatoi and Jagiranis Tribes.
3. ' Mr. Jai Jai Vishno learned counsel for the applicant in support of his plea for bail has argued that the applicant is innocent and he has been falsely implicated due to tribal feud between the people of Jagrani and Jatoi tribes. He has further argued that since 13-10-1999 the applicant is in custody and the case has not proceeded so far. Case diaries of 3-4-2003 and 16-4-2003 have been placed on record to show that trial Court was lying vacant. Learned counsel placed reliance on the cases of Riasat Ali and another v. The State PLD 1977 SC 480, Sanam Shah and 10 others v. The State 1986 PCr.LJ 2947 and Mumtaz and 13 others v. The State 1992 PCr.LJ 2325 and unreported order passed by this Court in Anwar v. The State Criminal Bail Application No,345 of 2002. Learned counsel has, therefore, argued that though proviso III and IV to section 497(1), Cr.P.C. Stand omitted and do not find place any more in the statute book but the legal position is well-settled that still bail can be granted on the ground of delay in conclusion of trial if it appears to be shocking and scandalous because even prior to insertion of proviso III and IV to section 497(1), Cr.P.C. Bails were being granted by this Court as well as apex Court on this ground. Reliance was also placed on the, case of Muhammad Sadiq v. Muhammad Shafi and others 1973 CMR 212. Learned counsel went on arguing that nobody can be kept behind the bars for indefinite period without conclusion of his trial as an early trial is right of an accused who is even otherwise deemed to be innocent unless otherwise proved.
4. ' Mr. Mushtaque Ahmed Kourejo learned State Counsel has opposed to the grant of bail and argued that it is a day time incident in which accused/applicant has been named and part has also been assigned to him. So many other accused are still absconding, which is the cause for delay in the trial and there is no fault on the part of prosecution.
5. ' We have given due consideration to the arguments of the learned counsel for the applicant and the learned State Counsel. It is not disputed that the applicant is continuously in custody for last more than four years and trial has not been concluded so far. We find ourselves in respectful agreement with the view taken by the Honourable Supreme Court in the above cited cases that delay per se is no ground for grant of bail but in the cases where it appears to be shocking and scandalous, as in this case, the Court can exercise its discretion in favor of an accused.
6. ' In view of the facts and circumstances as discussed above, we find that a case for grant of bail has been made out and as such we had granted bail to the applicant by our short order dated 20- 11-2003 directing his release on bail by the learned trial Court if he furnished solvent surety in the sum of Rs,2,50,000 (Rupees two lacs fifty thousand only) and P.R. Bond in the like amount to its satisfaction.
7. ' The above are the reasons for the same.