1. ' NADEEM AZHAR SIDDIQI, The applicant is facing trial in Crime No,75 of 2002, Police Station Rustam, under sections 302, 337-H(ii), 148, 149, 114 and 34, P.P.C. The allegation against the applicant, is that on the instigation of Lal Bakhsh he directly fire& from his .Gun upon Ghulam Sarwar cousin of the complainant who expired from the gun shot caused by the applicant. It was also alleged in the F.I.R.
2. That Ghulam Sarwar was killed due to old enmity of Karap.
3. ' Earlier the bail application was moved before trial Court, who has dismissed the same. The applicant then filed Bail Application No,517 of 2003, which was dismissed by this Court on 11-2-2004.
4. Thereafter the applicant had filed second bail application before the trial Court which was dismissed vide order dated 13-1-2005. Again the applicant has filed 3rd bail application before learned trial Court which was dismissed on 10-11-2005.
5. ' The applicant then filed Bail Application No,87 of 2006, which was disposed of with the directions of trial Court to conclude the case within ninety days. Since the trial was not concluded within the time granted by this Court the applicant moved fresh Bail Application No,56 of 2006, which was dismissed on 26-8-2006. The learned trial. Court has dismissed the bail application on the ground that the applicant has actively participated in the commission of the offence and the offence is falling under the prohibitory clause of section 497, Cr.P.C.
6. ' The learned counsel for the applicant has submitted that another case was got registered by the relative of the present accused in which the accused , persons have got bail from this Court under, bail application No,489 of 2006. He further submits that the applicant is under custody since 5-2- 2003 and almost four years have lapsed but the case was not proceeded and even after directions of this Court dated 4-4-2006 charge has not been, framed. This learned counsel submits that this is case of hardship and the applicant is entitled to the concession of bail.
7. ' On the other hand, Mr. Bhutto, State counsel has not opposed the grant of bail for the reason that in spite of directions of this Court the learned trial Court has failed to take any concrete efforts for the disposal of the case. He further submits that since in the counter-case the accused have been granted bail, the applicant in this case is also entitled for the concession of bail.
8. ' I have heard the learned counsel for the parties and perused the record made available before me.
9. ' The accused persons in Crime No,76 of 2002 of Police Station Rustam have got bail from this Court on 15-11-2006. Vide order dated 4-4-2006 the trial Court was directed to conclude the trial within ninety days. The order sheet of the trial Court shows that the copy of the said order was received by the trial Court on 13-4-2006 and further perusal of the diary sheet shows that thereafter no serious steps were taken by the learned trial Court to conclude the trial. Even till 30-9-2006 the learned trial Court has failed to frame the charge; Perusal of diary sheets further shows that the Court of 1st Additional Sessions Judge, Shikarpur is lying vacant since 26-6-2006.
10. The applicant is in custody since 5-2-2003. It is true that delay in prosecution of the case is not more available as the statutory right of the accused, however the Superior Courts always consider grant of bail on the ground of inordinate delay in conclusion of trial. Expeditious and fair trial is the right of every accused. The purpose of trial is not to punish the accused without trial. Inordinate delay if not explained, would amounts to abuse of process of law even in cases of capital punishment. Even where direction of the Superior Courts are not complied with without any justifiable reason, same could furnish a valid ground for grant of bail.
11. ' In view of the position that the order of this Court has not been complied with and the accused persons in countercase have got bail, the applicant in this case is also entitled for concession of bail on the ground of hardship. The applicant is therefore, allowed bail on his furnishing solvent surety in the sum of Rs 200,000 and P.R. Bond in the like amount to the satisfaction of trial Court.
12. Before parting with this order it is observed that in case the applicant is found misusing the concession of bail the trial Court is at liberty to proceed against applicant in accordance with law.