1. ' MUHAMMAD AFZAL SOOMRO, J.-Applicant, Rustam Ali, is facing trial before the learned VIIth Additional Sessions Judge Karachi South in a case came out of Crime bearing No,128/2004 of P.S. Kalakot, Lyari Town, Karachi registered under section 302/34 P.P.C.
2. ' The first . Bail application of the applicant bearing Cr. B.A. No,769/2004, after getting rejected his bail application by the trial Court, was dismissed by this Court on merits vide short order dated 30- 9-2004, followed by reasons dated 4-10-2004. He, again, approached this Court through Cr.B.A.
3. No,159/2007 which, too, was dismissed vide order dated 3-4-2007 observing that no fresh ground was made out by the applicant. However, learned trial Court was directed to proceed with the case expeditiously and decide the same within two months.
4. ' Now this subject bail has, again, been moved by the applicant, after getting his bail plea rejected by the learned trial Court vide order dated 6-8-2007.
5. ' The facts germane to the prosecution case are that on 24-5-2004 at about 5-00 p.m. On a written complaint of complainant, Muhammad Aslam Babul, recorded under section 154 Cr.P.C., F.I.R., bearing No,128/2004 was registered at Police Station Kalakot, Lyari Town, Karachi, wherein it is disclosed that on the eventful day while the complainant was taking lunch at his house at about 2.30 p.m., he heard that sister-in-law of Asif saying 'Amma where are?', the boys are giving beating to Asif. Having heard such hue and cry of women, the complainant came out of his house but failed to see any body. It is further disclosed that the complainant was apprised by his son that Asif sustained bullet injuries and that the people had taken him to the Civil Hospital. The complainant, therefore, closed his shop, running in the name and style of AlSadiq cold drinks, situated at Dhobi Ghat, and went to the house of Asif where mother of Asif namely Hameeda disclosed that her son Asif aged about 20 years was called out by boys of the Gali namely Ghaffar Hussain, Rashid alias Addon, Rustam (applicant herein) and Nayab Langra, who had old enmity due to some reason, had fired with kalashanikov and pistols at him with intention to kill. Having received serious injuries mohallah people including Lal Bux and Asghar have taken him to the Civil Hospital. The said Asif while being taken to Hospital succumbed to the injuries and expired.
6. ' The investigation followed and in due course the accused persons were sent up to stand trial in the Court of law.
7. ' I have heard the learned counsel appearing on behalf of the applicant as well as learned counsel for the State.
8. ' It has been contended by the learned counsel for the applicant that the applicant is innocent and he has been falsely implicated in the above noted case by the police on the instigation of the complainant. It has, further, been contended that there is delay of about one day in lodging the F.I.R., plausible explanation whereof has not been furnished though the place of occurrence is at the distance of 2 KMs, hence the case of the applicant comes within the definition of section 497(2)
9. Cr.P.C. It has, also, been contended by the learned counsel that the complainant and his witnesses have contradicted themselves with the contents of the F.I.R. It has, further, been contended by the learned counsel that the story set up by the prosecution or complainant is concocted one. It has, also, been contended that nothing incriminating has been recovered from the applicant relating to the commission of the above crime as such the involvement of the applicant in the above case requires further enquiry on this score also. It has, lastly, been contended that the applicant is behind the bars since last about three and half years and almost all material prosecution witnesses have been examined, contents whereof contradict the version of the complainant in the F.I.R, in as much as the learned trial Court has not concluded the case within the stipulated period- given by this Court. He has referred to the cases of Manzoor Khan v. Kamir and others (1972 SCM R 207): Muhammad Sadiq v. Muhammad Shafi and another (1973 SCM R 212): Gul Zaman v. The State (1999 SCM R 1271): Ghulam Abbas alias Abasi and others v. The State (PLD 2005 Kar., 255): Anwar Ali and another v. The State (2002 PCr.LJ 186) and Gul Beg alias Nangi v. The State (2005 PCr.LJ 147) in support of his contention with regard to delay in conclusion of trial.
10. ' On the other hand, learned counsel for the State has vehemently opposed the grant of bail on the ground that since it is a murder case, let some more evidence be recorded so as to determine the involvement of the applicant. So far as the delay in concluding the trial he has referred to the order dated 6-8-2007 passed by the trial Court explaining that on various dates the matter could not be proceeded due to prevailing and pressing circumstances.
11. ' I have given my anxious consideration to the arguments of the respective parties, perused the record and have also gone through the case law, cited at the bar, ' Perusal of record reveals that applicant was arrested immediately after registration of F.I.R. And since then he is behind the bars. His first bail application was dismissed on 30-9-2004, whereafter many of the material witnesses have been examined and besides contradictions in their statements, there is delay in proceeding the matter. The apex Court has since long recognized ground of delay as a valid ground for bail. In the case of Arbab Ali v. Ghulam Muhammad (PLD 1968 SC 353), being the first case on the subject, though the by the High Court on the ground of delay was recalled but the principle enunciated by the apex Court is the reflection of the pragmatic approach adopted in acknowledging such ground for extending benefit of bail. The observation of the Court is reproduced as follows: "Inordinate delay in prosecution of a case, if not explained by the prosecution amounting to an abuse of the process of law, can be considered as a ground for bailing out an accused person even in a murder case depending on the nature of the delay and the circumstances that have caused it. The eliminating every avoidable delay in order to bring it to a close and thus to determine the fate of an accused person while hangs in the balance as long as the proceedings do not terminate one way or the other. The prosecution cannot be permitted to enlist the will of the Court on its side directly or indirectly in prolonging the worries and harassment of an accused person which are inevitably caused by his protracted detention without trial. Leisurely steps taken in filing the challan, tardy and halting production of evidence or seeking of unnecessary adjournments, except those necessitated by force of circumstances must be strongly deprecated.
12. But delay in the prosecution of case or the procrastination of the proceeding in a trial furnishing as a ground for bail have to be weighed and judged in each case on its own merits."
13. ' In the case of Manzoor .Khan (supra) it was observed that it is not the intention of law to keep under trial prisoner including those charged with capital offence without trial for inordinate long period without satisfactory explanation or reason to justify that action. In the case of Muhammad Sadiq (supra) bail on the ground of one year delay granted by the High Court was not cancelled by the apex Court.
14. ' Similarly, in the case of Riasat Ali v. The State (PLD 1997 SC 480) Court did not only take into consideration the actual delay in the conclusion of the trial where the accused was behind bars for one year nine months the apex Court yet added another facet to the delay and taking into consideration period that may be consumed in conclusion of the trial and Court concluded that case would take one or two and half years before it could be expected to conclude and the bail was granted.
15. ' In the present case also position is more or less the same and the applicant is behind the bars since three years and three months. In view of these circumstances, I have no option but to extend concession of bail to the applicant.
16. ' Accordingly, applicant, Rustam Ali, is granted bail but subject to furnishing two sureties in the sum of Rs,2,00,000 (Rupees two lacs only), each and PR bond in the like amount to the satisfaction of the trial Court.
17. ' Cr, B.A. No,748/2007 stands disposed of.