' ABDUR RAHMAN FARUQ PIRZADA, J.--- The applicant seeks bail in the case vide Crime No,34 of 1999 of Police Station Gaji Khuhawar registered for an offence under sections 302, 324, 148, 149, P.P.C.
Allegedly the applicant along with others committed murder of Haji Hamid by fire-arms.
2. Learned counsel for the applicant has mainly pressed this bail on the ground of hardship. The applicant is stated to have been confined in jail in present case since 14-7-2003, but the case has still not been concluded. Previously the applicant had approached this Court in Criminal Bail Application No,549 of 2006, and the order, dated 15-11-2006 was passed by this Court, whereby the learned trial Court was directed to examine at least the witnesses viz. Complainant Dodo, Medical Officer, Tapedar and P.W. Asghar and if possible other witnesses as well within a period of 4 months. It was also observed that in case the witnesses were not examined during the stipulated period, the applicant would be at liberty to repeat the bail application directly before this Court.
3. Learned counsel for the applicant has stated that since the order, dated 15-11-2006 by this Court, not a single witness has been examined, due to no fault or omission on the part of applicant. He has further stated that complainant Dodo who is confined in Central Prison, Sukkur has been declared as dangerous person and he is not being taken out from Central Prison, Sukkur to attend other Courts in different districts, whereas the other prosecution witnesses are absconders in some other case, as such they have not been in attendance before the trial Court on various dates of hearing. According to learned counsel for the applicant, the applicant is languishing in jail for the last more than 4 and half years and the case has not been concluded. Even despite the directions given by this Court, the case has not proceeded.
4. Learned Assistant Advocate-General has conceded to the grant of bail in view of the above abnormal delay in proceeding of the case in spite of the previous direction given by this Court.
5. I have considered the submissions made by learned counsel for the applicant as well as Assistant Advocate-General. Admittedly the applicant is confined in jail since 14-7-2003 and the case has not yet been concluded. This position is also admitted by learned Assistant Advocate- General that the complainant as well as P. Ws. Have not been examined, even after the direction was given by this Court vide order, dated 15-11-2006. It appears that previously the progress report of learned trial Court was called and in compliance thereof the progress report, dated 24-10-2007 by IInd Additional Sessions Judge, Larkana was received, according to which the request was made for extension of another one month's time for conclusion of trial on the ground that complainant Dodo who was confined in District Jail Shikarpur, and other prosecution witnesses might be produced. It appears that even after this report by learned trial Court, no progress whatsoever has been made in the proceedings of the case. In the attending circumstances, the conclusion of trial does not seem to be likely in near future. The applicant has already remained in jail for more than 4 and half hears. It is the right of every under-trial prisoner to have expeditious trial, and no person can be allowed to remain in jail for indefinite period due to lapse on the part of prosecution.
6. It may be pertinent to make reference to the case of Guloo alias Gul Muhammad v. The State 2005 PCr.LJ 715 (Karachi) wherein bail was granted on the ground of hardship to accused who had remained in custody for a period of 4 years, 9 months and 9 days.
7. In the case of Liaquat Ali v. The State 2005 PCr.LJ 1714, the accused was granted bail on the ground that he had remained in jail for the period of nearly 4 years, when the complainant who was eye-witness in the case was absconding as accused in another case, and it was held that progress in the trial in circumstances had become uncertain and it was not known as to when trial would be concluded.
8. The reliance may be placed on a D.B. Ruling of law in the case of Gulbeg alias Nangi v. The State 2005 PCr.LJ 147 (Karachi) in which it was laid down that the applicant and continuously remained in custody for more than 4 years and trial of his case had not concluded. It was observed that although delay per se was no ground for grant of bail but in cases where delay appears to be shocking, as in the present case, the Court can exercise its discretion in favour of accused.
9. The reference may also be made to the case of Chakde v. The State 2005 PCr.LJ 55.7 wherein bail was granted to accused on the ground of hardship who had remained in captivity for more than 26 months as such he could not be detained any further as a measure of punishment.
10. The reliance may be placed on the case of Ghulam Abbas alias Abbasi and others v. The State PLD 2005 Kar. 255, which is a D.B. Authority of law, in this case a very exhaustive discussion has been made, and it is laid down as under:-- "It may be observed that the delay was acknowledged as the statutory right by the legislation but for the best known wisdom same has been withdrawn but as discussed in above noted cases, bail has always been conceded by the apex Court even when such provisions were not available on the Statute Book and even in some cases where such restriction was imposed the Court conceded bail on the ground of undue delay. The principle as has been enunciated in the cases above appears to be that delay in each case is to be judged and weighed on its own merits. Inordinate delay if not explained amounts to abuse of process of law even in cases of capital punishment where the prosecution is loath in submitting the challan slow in producing witnesses, fails to produce the accused without any justification and or delaying tactics used by persons other than the accused including the complainant. There is consensus of opinion that if the delay is so shocking and scandalous, it amounts to abuse of process of law. Even where the directions of the Superior Courts are not complied with without any justifiable reason may furnish a good ground for bail. Even in cases on the assessm ent of the police papers and conduct of the prosecution it could be seen that there is no future likelihood of conclusion of the trial in foreseeable future as for instance where proceedings against the absconding accused take time or where the trial for any other reason could not be concluded. Court may be lying vacant for long period or where dispute as to jurisdiction of Court takes unreasonable time for decision. As was held by the apex Court in Muhammad Saeed Mehdi the object of criminal trial is to make accused face trial and not to punish as UTP, expeditious trial was recognized right of accused person."
' In the same authority of law it is also laid down as under:-- "Preponderance of authorities discussed above that fair and expeditious trial is right of an accused person. Prosecution cannot be absolved or given any latitude on account of inability to produce accused from jail for lack of resources. It is duty of State to make arrangement for providing logistic to prosecution to ensure production of accused in Court on each and every date."
11. It may be significant to observe that specific direction was given by this Court as per order, dated 15-11-2006 for examination of particular witnesses, and in case of their non-examination, before the trial Court, the applicant was allowed to approach this Court directly for seeking bail.
The case could not proceed even after the said specific direction of this Court, and admittedly due to no fault on the part of applicant.
12. In this regard, reference is placed on the valuable ruling of law by Honourable apex Court in the case of Muhammad Aslam v. The State reported as 1999 SCM R 2147 (Supreme Court of Pakistan), wherein it was held that despite direction of High Court, trial against the accused had not been completed by the trial Court within the specified period, the prosecution was unable to give any explanation for non-compliance of the said order of High Court, as such the accused was admitted to bail in circumstances.
13. In view of the given circumstances, and while placing implicit reliance on the above, cited authorities of law, I am of the considered view that the applicant is entitled to the concession of bail. This application is allowed, and the applicant may be released on bail on his furnishing solvent surety in the sum of Rs,2,00,000 and P.R. Bond in the like amount to the satisfaction of trial Court.