S. ALI ASLAM JAFRI, J. - Applicant Wazir Ali who was arrested in 22.5.2000 in Crime No. 7/2000 of Police Station Baradi Jatoi District Khairpur is facing trial in the Court of learned IIIrd Additional Sessions Judge, Khairpur for offences under Section 302/459/324/40/34 PPC and 13(d), Arms Ordinance.
2. The allegation against the applicant as per FIR registered on 2.4.2000 is that he armed with a rifle like a Kalashnikov along with an unidentified in the house of the complainant during the fateful night. Complainant and his brother Mureed Hussain grappled with the accused whereupon the applicant Wazir Ali fired from his rifle at Mureed Hussain who sustained injury on his right and left arm and fell down on the ground. The other accused who was armed with gun caused blows with its butt to the complainant on his head. At that time two other persons were also found standing in the courtyard of the house duly armed with hatchets. Due to fire-arm report and the cries raised by the complainant. PWs namely Fareed and Sharif who are brothers of the complainant and other villagers also reached there. While seeing the said witness all accused decamped from the place of incident. Mureed Hussain who was lying injured was shifted to Pir-Jo-Goth Hospital for treatment and report was thereafter lodged by complainant Abdul Majeed. Initially report was lodged under Sections 459/324/34, PPC and 13(d), Arms Ordinance but subsequently due to death of Mureed Hussain Section 302 was also applied in the challan. Charge appears to have been framed by the learned 1st Additional Sessions Judge, Khairpur/Trial Court on 16.6.2001 but witnesses were not coming forward to give evidence despite having been served, as such BWs were ordered on 18.7.2001, despite service of the BWs the prosecution witnesses did not attend the Court. On 5.9.2001 one witness Fareed appeared but Presiding Officer was on earned- leave. The case diary onwards shows that matter went on being adjourned from time to time either due to nonavailability of the witnesses or non-production of the accused from the jail custody and on 10.1.2002 case did not proceed for want of police papers. Ultimately the Presiding Officer was transferred and the Court remained lying vacant till 30.3.2004. After appointment of the Presiding Officer efforts were taken to proceed with the case but due to nonavailability of the witnesses it was again adjourned from time to time, ln the meantime co-accused Masti Khan expired in jail and till the filing of this bail application there appeared to be no progress in the case. A bail application was filed before the learned Trial Court which was rejected on 9.12.2003 Where-after the applicant has filed this application.
3. Mr. Sher Muhammad K. Shaikh learned counsel for the applicant has argued that earlier two bail applications were dismissed as not pressed in view of the direction issued by this Court for expeditious conclusion of the trial and the third application resulted in transfer of the case to the Court of learned IIIrd Additional Sessions Judge, Khairpur. Despite having completed a period of more than four years the trial has not been concluded. While realizing the difficulty in his way that earlier bail applications were not pressed on merits learned counsel has not argued this bail application on merits but the main thrust of his arguments is that the delay in disposal of the case appears to be shocking and scandalous or at least it is a case of hardship. Learned counsel has argued that even before amendment in Section 497, Cr.P C. By introducing provisos iii & iv, the detention of under-trial prisoners for inordinate period without satisfactory explanation was being considered by the apex Court as a ground for release on bail. He has referred to MANZOOR KHAN vs. KAMEER AND 4 OTHERS (1972 SCM R 207), wherein it has been held that it is not the intention of the law to keep under-trial prisoners, including those charged with capital offences without trial for inordinately long periods without any satisfactory explanation or reason to justify that action."
Learned counsel has further referred to MUHAMMAD ASLAM vs. THE STATE (1999 SCM R 2147), in order to substantiate his contention that if the direction by this Court is not complied with and trial is not concluded within the time fixed by this Court, bail is to be granted despite the offences being heinous Learned counsel also referred to the case of ZAR WALI vs. THE STATE (2003 P.Cr.L.J. 1446).
Lastly, reliance has been placed on a Division Bench judgment of this Court in the case of MAULA BUX & ANOTHER vs. THE STATE (PLJ 2004 Cr.C. Karachi 623), where my learned brother Wahid Bux Brohi. J. Speaking for the Bench and while relying upon observation made in Saeed Mehdi's case (2002 SCM R 282) held that a fair and expeditious trial of an accused is a right, which is to be safeguarded. Bail was granted to accused who had remained in jail without trial for more than four years.
4. Mr. Zubair Ahmed Rajput learned State counsel has opposed to the grant of bail and argued that the circumstances of the case do not justify the grant of bail to applicant who has been attributed role of firing upon Mureed Hussain who died as a result of injury at his arm and hand and the delay in trial cannot be solely attributed to me prosecution. He has further argued that mere noncompliance of a direction by this Court to the Trial Court to conclude the trial within specified period cannot be considered to be a fresh ground for filing a bail application.
2. I have given due consideration to the argument of the learned counsel for the applicant and learned State counsel. I have also gone through the material placed on record and the case-law cited at the bar. Indeed, a direction to the Trial Court to conclude the trial within specified time if not complied with, cannot be deemed to be fresh ground as held in the case of MUHAMMAD NAWAZ vs. THE STATE (2003 M LD 79), nevertheless, the delay in conclusion of a trial when it appears to be shocking and scandalous or when it appears that complainant and his witnesses have played a part m delaying the conclusion the trial by remaining absent despite having been served in order to see that accused should remain incarcerated for as much time as possible can be taken into consideration for grant of bail. The complainant and the PWs who are related inter se and two of the witnesses are real brothers of the complainant, have failed to appear despite issuance and service of BWs against them, this fact speaks for itself. Indeed, Provisos iii & iv to Section 497, Cr P.C stand duly omitted during the pendency of this case but even before introducing the said provisos iii & iv to Section 497(1), Cr.P.C, bail was being granted in cases of delay in conclusion of the trial which appeared to be scandalous and shocking. Hardship is also being considered as a ground for bail in appropriate cases by superior Courts of the country.
6 As a result of discussion made above, I have reached at a conclusion that it is a case where discretion can be exercised in favour of the accused/applicant; however, heavy surety can be demanded from him. I would, therefore, direct that applicant Wazir Ali shall be released on bail if he furnishes two solvent sureties, each in the sum of Rs. 200,000/- (Rupees Two Lacs Only) with P.R.
Bond in the like amount to the satisfaction of the learned Trial Court.