' Jagday son of Mamoora petitioner seeks his post-arrest bail in case F.I.R. No,232, dated 14-6-2002 registered at Police Station Khurrianwala, District Faisalabad for offences under sections 302, 324, 148 and 149, P.P.C.
2. The case of the prosecution as unfolded in the F.I.R. Registered at the instance of Piran Ditta son of Falaksher was that the petitioner along with his co-accused Mustafa son of Sher Muhammad, Ameer Ali son of Noor Muhammad and Allah Ditta, armed with .12 bore guns, Sana Ullah armed with rifle, Muhammad Boota son of Sana Ullah armed with a .12 bore gun and a pistol .30 bore launched attack on the complainant party; Allah Ditta raised a Lalkara that Falaksher and Muhammad Ali should not escape whereupon all the accused persons fired with their respective weapons as a result of which two persons from the complainant's side namely Muhammad Ali and Falaksher, brother and father respectively of the complainant lost their lives. The role attributed to the petitioner Jagday was that he caused a fire-arm injury to Falaksher which hit on the inner side of his left thigh. The roles attributed to the rest of the accused are distinctly mentioned in the F.I.R. The motive according to the complainant was that Sana Ullah accused had promised to marry his daughter Mst. Bailan Bibi with Zafar Iqbal, the brother of the complainant, but later on Sana Ullah refused to live up to his commitment and wanted to marry his sister in the family of the opposite party of the accused persons. According to the complainant this was the grudge which prompted the accused party to launch the murderous attack after due deliberation and consultation.
Resultantly the instant F.I.R. Had been recorded.
3. The petitioner's application for post-arrest bail had been turned down by the learned Court of Session whereafter he approached this Court by means of an application bearing Crl. Misc.
No,4475/B of 2003. A report had been called from the learned trial Court as to when the trial was likely to be concluded whereupon the learned trial Court informed this Court that it expected that the trial would be concluded within four months. It was in this background that the learned counsel for the petitioner on 6-11-2003 had withdrawn the petition for the time being so as to await the conclusion of the trial in terms of the assurance extended by the learned trial. Court. More than nine months have elapsed since the previous bail application had been disposed of on 6-11-2003.
The petitioner has approached this Court again through the instant application complaining that no substantial progress has been made in the trial and that the delay is not attributable to the petitioner.
4. I vide my order; dated 26-7-2004 had called a report from the learned trial Court to explain as to why the trial had not progressed in spite of the assurance extended by it previously. The report has been received from the learned trial Court wherein it has been stated that on 24-5-2004, 8-6-2004, 21-6-2004, 11-7-2004 and 12-7-2004 the private witnesses had not been produced before the Court whereupon non-bailable warrants for their arrest had been issued for 29-7-2004. According to the report, on 29-7-2004 seven P.Ws. Who were the eyewitnesses of the case except the complainant, were present before the Court but due to absence of the complainant's counsel their statements could not be recorded. The learned trial Court added in the report that the complainant who is also an injured P.W. Has been involved in another murder case and has become fugitive from law, therefore, he is not appearing before the trial Court. The learned trial Court further stated in the report that the learned counsel for the prosecution is not ready to give up the complainant whereas the learned defence counsel was not ready to cross-examine the rest of the P.Ws. Due to fear of disclosure of cross-examination and the line of defence. The perusal of the report reveals that it is the prosecution alone which is responsible for the inordinate delay which has so far taken place in disposal of the trial. The petitioner is in custody and according to the report he has contributed nothing towards the delay of the trial. In this background the learned counsel for the petitioner argued that the conclusion of the trial is not in sight and added that the injury attributed to the petitioner was on thigh of one of the deceased persons and had not been declared individually fatal by the doctor. He also added that Although the petitioner was allegedly armed with a gun yet he did not opt to repeat the fire and as such his culpability in the main offence as also his vicarious liability under section 149, P.P.C. Needs further probe with the meanings of subsection (2) of section 497, Cr.P.C.
5. The learned counsel appearing for the State opposed the grant of bail but could not justify the prosecution's constant failure to produce their witnesses. He could not give any time frame or could not state with certainty as to when the trial is likely to conclude.
6. I have considered the arguments of the learned counsel for the parties at length and have also gone through the record brought by Zulfiqar Ali, A.S.-I., and Police Station Khurrianwala. It has been observed that the petitioner had been arrested as far back as on 5-7-2002. More than 26 months have elapsed since his arrest but no worthwhile progress has been made in the trial. Although the statutory provisions recognizing accused persons' right to claim bail on account of delay have been repealed yet the repeal of the said provisions do not give a carte blanche to the prosecution to prolong the trial at its whims adding to the agonies of the under-trial prisoners and their dependents. I have noted with regret that despite a direction of this Court and assurance extended by the learned trial Court no progress could be made in the trial due to dilatory tactics adopted by the prosecution. The petitioner who is in captivity for the last more than 26 months cannot be retained as such as a measure of punishment.
7. Resultantly this petition is allowed and the petitioner is admitted to bail in the sum of Rs,one lac with two sureties each in the like amount to the satisfaction of the learned trial Court.