' MUHAMMAD AFZAL SOOMRO, J.--- The applicant Hanif son of Allah Rakha, is facing trial for an offence punishable under section 302/34, P.P.C. Lodged at Gulzar-e-Hijri Police Station, Karachi, under F.I.R. No,407 of 2001 on 9-9-2001.
2. The facts of the prosecution case as unfolded in the F.I.R. Are as follows:-- "Thk the complainant is residing with his family at the address mentioned in Column No,2 and owner of Dumper and Truck carrying `Reti' and Bajri, and earth. About four months ago, complainant had filled the plot of Hanif through his truck and. Dumper in consideration of Rs,4,000 but Hanif did not pay him the said sum of Rs,4,000, being his labour charges and kept him on false hopes. He had promised to come today, i,e, 9-9-2001' at the evening time at his Thens Bara', situated at Sukhiya Ayoub Goath. Accordingly, complainant with his paternal-cousin Hazrat Khan son of Bakht Amir Khan, Saeedur Rehman son of Gul Jan, relative Sher Afzal son of Glaband Khan reached the gate of Thens Bara' of Hanif in Sukhiya Ayoub Goath. It was 7-30 p.m. When Hanif and Qasim with two other companions whose names and residence is not known, but could be identified by their features, met. Complainant party demanded their money from them, whereupon both the brothers Hanif and Qasim got irritated and rushed inside the `Barba', on their return Hanif was having rifle like kalashnikov and Qasim had .12 bore rifle in his hand while the other two unknown had pistols, who immediately on their arrival, opened firing at all the four of us with intention to kill. On account of firing of Hanif, two bullets hit Hazrat Khan on his left hand and right thigh who became injured and fell down and died on the spot, when all the four accused escaped while firing. Accused Hanif ran away from the scene throwing his rifle like kalashnikov, which the complainant took with two empty magazine and brought the dead body of Hazrat Khan with the help of Saeedur Rehman and Sher Afzal at Abbasi Shaheed Hospital and after informing relatives have gone to the police station for making report and produced the rifle with magazine which was thrown by accused Hanif. Complainant lodged the complaint against accused (1) Hanif, (2) Qasim and two other accomplices, whose faces are familiar but name and residence are not known for killing Hazrat Khan, action be taken."
3. During the course of investigation six accused namely (i) Hanif, (ii) Qasim,(iii) Juma, (iv) Ismail,
(v) Sattar and (vi) Sher Muhammad, were arrested and charge-sheet was submitted in the Court of Sessions Judge, Malir, Karachi.
4. After submission of challan application for bail was filed before the learned trial Court but the same was declined. Thereafter the applicant had approached this Court on 8-6-2002 for bails vide Criminal Bail Application No,773 of 2002, which was dismissed on 31-7-2002 by this Court. Against the said dismissal order the applicant preferred Criminal Petition for Leave to Appeal No,108-K of 2002, which too was declined on 8-12-2003 with the following observation:-- "The learned counsel for the complainant states that trial in this case is in progress. In this view of the matter, we are not inclined to grant the concession of bail to the petitioner. However, petitioner may if so advised, would be at liberty to repeat his bail application after some evidence is recorded by the trial Court."
5. Again applicant Hanif son of Allah Rakha approached learned IInd Additional Sessions Judge, Malir, Karachi, by filing bail application under section 497, Cr.P.C. In Sessions Case No,413 of 2001 for bail, which was dismissed by the learned trial Judge, vide impugned order dated 24-9-2005, hence the present application for bail.
6. I have heard learned Advocates for the applicant, complainant so also the learned State Counsel and with their assistance have gone through the material available on record.
7. It has been contended by learned counsel for the applicant that the other co-accused have been granted bail by this Court and that the applicant has been implicated in this case due to mala fide reasons. He has further contended that this is a false case for the reason that in the F.I.R.
Complainant has mentioned that accused Hanif rushed inside the Bara and returned with a rifle and after causing injuries to complainant party ran away from the scene. Admittedly the applicant is handicapped person as his left leg was amputated above the knee in the year 1985 and since then he is using the crutches. He has further argued that the applicant was not present at the scene of offence. Learned counsel further submitted that the complainant in his 164, Cr.P.C.
Statement stated that near the place of incident of Vardat there was a market of fourteen shops but no one has been examined as a witness in this case. There are material contradictions as to the number of accused persons. In the F.I.R. Four persons were shown as accused while in 161, Cr.P.C. Statements there were thirteen persons and in 164, Cr.P.C. Statements 20/25 persons were alleged to have partaken the offence.
8. It has further been submitted on behalf of the applicant that the applicant was produced only thrice before the learned trial Court and the matter was adjourned for more than seventy-five times without fault on the part of the applicant, as such the applicant is undergoing hardship and is being penalized without any trial. He has produced the case diaries from 27-10-2001 to 14-7-2005 to substantiate the above submission. He has further submitted that till today no copies under section 265-C, Cr.P.C., have been supplied to the applicant. He has lastly argued that there is no likelihood of conclusion of trial in near future inasmuch as he is not required for further investigation. According to learned counsel no useful purpose would be served to allow the applicant continuously detained in jail. On merits also the case of the applicant requires further inquiry. In support of his contention he has relied upon the case of Barkhurdar v. Liaquat Ali PLD 1977 SC 434.
9. Learned counsel appearing for the complainant has contended that the applicant is not entitled to the grant of bail as the Honourable Supreme Court of Pakistan, vide its order, dated 8-12-2003, passed in Cr.P. No,108-K of 2002 declined to grant the concession of bail to the applicant. He has further contended that the name of the applicant transpired in the F.I.R. With a specific role. He has lastly contended that this bail application should be dismissed.
10. Conversely, learned State Counsel has conceded to the grant of bail to the applicant on the ground of hardship owing to delay in trial. He admitted that the applicant was not being produced regularly before the trial Court and except three dates of hearing, almost on all the dates the applicant was not produced. Therefore, no substantial progress could be made in the matter.
11. I have given due consideration to the arguments advanced by the learned counsel for the parties. From the case diaries produced by the learned counsel for the applicant it appears prima facie that the case has not proceeded as yet before the learned trial Court.
12. So far as the order of the Honourable Supreme Court of Pakistan is concerned, suffice it to say that the petition was dismissed on the statement of learned counsel for the complainant that the trial in the case was in progress but admittedly no progress has been made so far in view of case diaries produced by the learned counsel for the applicant. I am fortified by the decision of Honourable Supreme Court in the case of Riasat Ali v. State PLD 1977 SC 480.
13. In view of the above facts and circumstances by my short order, dated 5-12-2005, I had granted bail to the applicant in the sum of Rs,2,00,000 (Rupees two hundred thousand) with P.R. Bond in the like amount to the satisfaction of the trial Court and above are the reasons for the same.
' Criminal Bail Application No,980 of 2005 stands disposed of.