' SARMAD JALAL OSMANY, J.- Briefly stated the facts of the matter per F.I.R. No, 106 of 2004 of Police Station Risala under section 302, P.P.C. Are that the complainant Mst. Zaibunnisa was informed on the day of the incident viz, 9-9-2004 at 10-30 p.m. That her son Hamid had been shot dead by applicant/accused Saqib. She went to the place of incident and found her son lying on the ground in a pool of blood. He was taken to hospital where he expired.
2. In support of the bail application learned counsel has firstly submitted that three alleged eye- witnesses namely P.Ws. Asif, Rizwan and Atique have not supported the Prosecution case at all in their deposition before the learned trial Court. In this regard he has submitted that P.W. Asif has resiled from his 164, Cr.P.C. Statement before the learned trial Court and hence declared hostile.
However, nothing could come about during his cross- examination which would help the prosecution. Similarly, P.W. Muhammad Atique was declared hostile and was again cross- examined by the learned DDA during which he did not admit any thing which might be of any assistance to the prosecution. Insofar as P.W. Rizwan is concerned, although he was not declared hostile, however, he has admitted under cross-examination that he had never seen the applicant/accused Saqib running away from the scene of the crime along with coaccused Nomi having a pistol in his hand. Insofar as the other eye-witness is concerned, viz. Junaid, he could not be brought before the learned trial. Court although bailable warrants were issued on 2-5-2006.
Hence, per learned counsel, the case of the applicant/accused is one of further enquiry for which proposition he has relied upon Atta Ullah v. The State (2002 SCM R 1412). And Muhammad Mansha v.
The State (2006 PCr.LJ 47).
3. Next, day per learned counsel, the applicant/accused is entitled to bail on the ground of hardship/delay as he was arrested on 20-9-2004, the charge framed on 25-11-2005 and to date only four prosecution witnesses have been examined whereas the prosecution has filed a list of nineteen witnesses. Hence, it is not known when the trial would conclude. Per learned counsel the certified copies of the learned trial Court's diary sheet, which have been placed on the record, would show that such delay can hardly be- attributed to the applicant/accused and further he is not a dangerous, hardened or- habitual criminal. Finally, per learned counsel, nothing has been recovered from the applicant/accused or from the place of incident except the blood-stained earth. For this submission he has relied upon Haji Maa Din and another v. The State and another (1998 SCM R 1528) and Muhammad Hashim v. The State (2004 M LD 458).
4. For all the foregoing facts and reasons learned counsel has prayed that this bail application be granted as the case is one of further enquiry.
5. On the other hand, learned state counsel has opposed the bail plea on the ground that one eye- witnesses remains to be examined and consequently the applicant/accused can yet be convicted on his testimony alone. He has therefore prayed that the bail application be dismissed along with direction to the learned trial Court to examine this eyewitness whereafter a fresh bail application could be moved.
6. I have heard both the learned counsel and my conclusions are as under:
7. It would be seen that although two eye-witnesses have been declared hostile and the third one has admitted under cross- examination, that he never saw the applicant/accused running away from the scene of the crime, yet one eye-witness remains to be examined and it may be that upon his testimony alone the learned trial Court would come to the conclusion that indeed the applicant/accused is guilty of the charge against him. However, having said as much, it would also be seen that he has remained behind bars for over two years and the trial has not yet concluded.
So far the only remaining eye-witnesses is not traceable although coercive process has been issued against him. So also it is not the prosecution's case that the applicant/accused is a hardened dangerous or desperate criminal as this is the only crime in which he has been involved.
I have also perused the diary sheets of the learned trial Court and I am satisfied that apart from two or three adjournments, the delay in the conclusion of the trial cannot be attributed to the applicant/accused. Hence I am of the opinion of that on the ground of hardship alone he is entitled to bail.
8. For the foregoing reasons, this bail application was allowed vide short order passed earlier.