1. ' KHALID ALI Z. QAZI, J.--- This is bail application filed on behalf of applicant/accused Inayat Ali who is allegedly involved in Crime No,127 of 2004 Police Station, Thariri Mohabat, for offence punishable under sections 302, 504, 34, P.P.C.
2. ' The facts in brief of the prosecution case are that on 20-8-2004 at 1630 hours complainant Ali Akbar Chandio lodged his F.I.R. At Police Station Thariri Mohabat stating therein that he is Hari by profession and has five sons. Out of them Shafique Ahmed is aged about 22/23 years. About six days prior to this incident a quarrel took place between son of the complainant, namely Shafique Ahmed and Inayat Ali (applicant/accused) on their little children and saw that the applicant was annoyed. That on 19-8-2004 the complainant's uncle Shahabuddin, cousin Hazurudin went to complainant and after taking night meal they were chit chatting with each other. It was 11-45 -p.m.
3. When they saw accused Inayat Ali armed with pistol and other three unidentified culprits duly armed with deadly weapons abused to Shafique Ahmed. Accused Inayat Ali made straight fire from his pistol upon deceased Shafique Ahmed which it on his left side nipple and died at the spot.
4. Thereafter, accused persons fled away. Thereafter complain:ant party brought the dead body of deceased at police station and obtained letter for post-mortem report and after post-mortem on the dead body of deceased, complainant appeared at police station and lodged F.I.R. Of the incident as stated above.
5. It is argued by the learned counsel for the applicant that there is delay of 16 hours in lodging the F.I.R.; the place of incident is at a distance of hardly 2/3 kilometers from police station but no plausible explanation with regard to such a long delay has been furnished by the complainant.
6. According to him prior to registration of F.I.R. Another F.I.R. No,20 of 2004 for the same offence was lodged at Police Station Thariri Mohabat in which no name of the accused as well as applicant/accused is appearing but the name of the applicant/accused find place in the subsequent F.I.R. Hence the case of applicant appeared to be of two versions and it is yet to be determined at the time of trial as to which version of the complainant is correct. He further submits that the applicant/accused is behind the bars since 5-9-2004 and pas completed more than three years without any conclusion of the trial hence it creates indolence on the part of prosecution and it is settled principle of law that law favours vigilant and not indolent. He has relied upon the case reported as Abdul Hameed and 2 others v. The State 2003 MLD 19 wherein this Court while granting bail to the applicants has held that criminal case must be disposed of without unnecessary delay, inordinate delay in imparting justice was likely to cause erosion of public confidence in the judicial system on one hand and on the other hand it was bound to create a sense of helplessness, despair, feeling of frustration and anguish apart from adding to the woes and miseries of the public. Great hardship had been caused to the accused due to inordinate delay in conclusion of the trial in the peculiar circumstances of the case.
7. In the present case, prosecution in support of its case had examined complainant Ali Akbar, P.W Hazuruddin, P.W. Shahabuddin, Dr. Muhammad Umer, Investigating Officer Ali Akber as such there is material contradiction of glaring discrepancies in the depositions/ statements of the complainant as well as prosecution witnesses.A statement has been filed by the learned Advocate for the applicant along with the diaries of the proceedings of the trial Court. The learned Advocate for the applicant stated at the bar that the record of the case has been burnt on 27-12-2007 and du to non-availability of the record of the trial Court case could not be pr ceeded. On perusal of the diaries it reveals that the case has been adj urned time and again without any further progress.
8. ' Learned State counsel apparing on behalf of the State after going through the case diaries an material available on the record conceded the factual position that the record of the case has been burnt on 27-12-2007. Learned State Counsel after going through the case diaries has stated that this is a case of hardship as the delay having been caused in the commencement and conclusion of trial could not be attributed to the present applicant. He, therefore, has candidly conceded to the grant of bail.
9. ' I have carefully considered the arguments and perused the case diaries and other material available on record. The case diary recorded by the learned trial Court on 28-2-2008 reads as under:-- "Diaries 28-2-2008 {{Miss arrange text}} ' Original case was burnt on 27-12-2007. Today bail application filed by Mr. Abdul Rasool bbasi, Advocate of accused Inayat Ali, order on it. Notice t D.D.A. And call police papers. Hearing 5-3-2008 for argu nts.
10. (Sd.) 1st Additional Sessions Judge, Dadu."
11. ' The applicant was arrested on 5-9-2004 and he is continuously in custody since then. In the absence of availability of record the case could not be proceeded. Respectfully relying upon the case-law reported in 2003 MLD 19; AIR 1941 Sindh 186; AIR 1942 Cal. 219; PLD 1955 Sindh 227 and 2000 SCMR 107 and looking to the hardship caused owing to inordinate delay in conclusion of the trial in the peculiar circumstances of the case in hand. I am of the view that this is a fit case in which indulgence must be demonstrated. Leamed State Counsel has thus, rightly conceded to the grant of bail keeping in view the hardship inflicted upon the applicant. For the foregoing reasons, the applicant is directed to be released on bail on Ms furnishing surety in the sum of Rs.2,00,000 and P.R. Bond in the like amount to the satisfaction of the trial Court.