1. ' BIN YAMIN, J.--- This order will dispose of bail application made on behalf of applicant Zahid Shah who is detained in case F.I.R. No,6 of 2003 registered at Police Station "B" Section, Khairpur under sections 302, 34, P.P.C.
2. ' Brief facts of the case are that on 30-1-2003 complainant Muhammad Hussain Junejo lodged F.I.R.
3. With the aforesaid police station stating therein that on that date he along with his nephew Ashfaq Ahmed was coming back on motorcycle belonging to one Khadim Hussain bearing Registration No,SK-8284, after attending his work at Faiz Abad, at about 5-30 p.m. When they reached near Therhi Railway crossing, all of a sudden three persons amongst whom one was armed with mouser and two others with pistols intercepted them and tried to rob them of motorcycle. In the meantime, P. Ws. Khadim Hussain and Ahmed Ali, both Phulpoto by caste also came there on motorcycle and saw the incident and culprits. His nephewAshfaq resisted the attempt of robbery made by the accused, on which accused, who was armed with mouser fired a shot which hit Ashfaq on his chest, thereafter all the three accused took away their motorcycle. On sustaining fire-arm injury Ashfaq Ahmed fell down on the ground and died. Complainant further stated that he left P.W.
4. Khadim Hussain over dead body of Ashfaq and he and P.W. Ahmed Ali followed the accused on motorcycle belonging to P.W. Ahmed Ali. He further stated that when they reached at Rohri Canal speed breaker police of "B" Section had stopped accused along with robbed motorcycle for checking. On their arrival there, they intimated the police about the incident. Complainant further stated that the police succeeded in detaining two persons on the spot, whereas third one succeeded in running away. On interrogation, accused detained, one disclosed his name as Javed alias Muni and other one disclosed his name as Syed Amir Ali Shah. An unlicensed, mouser was recovered from the possession of accused S. Amir Ali Shah, whereas on personal search of accused Javed one pistol along with four live bullets was recovered. On enquiry, accused disclosed name of their companion who succeeded in running away as Zahid Shah, the applicant. The police then prepared Mashirnama on the spot and secured robbed motorcycle and arms from the possession of accused and then brought them at police station where F.I.R. Of the complainant was recorded.
5. ' On completion of the investigation police filed challan in the Court of A.T.C.-II, Sukkur, in which applicant was shown as absconder. It is further stated that on 19-8-2001 complainant made application before A.T.C.-II, Sukkur stating therein that the applicant has been arrested, therefore, he requested for calling the said accused to stand trial. The production order of the accused was issued and he joined the above case on 26-8-2003. Since the time of his arrest in this case the applicant is detained in custody. Previously the case of the applicant and others was tried by A.T.C.-II, Sukkur and accused Amir Ali Shah was awarded death sentence whereas applicant and co-accused Javed were awarded life imprisonment. Against the judgment of A.T.C.-II, Sukkur all the three accused filed two separate appeals before this Court which were registered as Appeals Nos.D-31 and 32 of 2004.
6. ' After hearing the appeals, this Court set aside conviction order of all the three accused and remanded case to A.T.C.-II, Sukkur for retrial of the case. Subsequently applicant and others 'submitted application under section 23 of the A.T.A., 1997 before A.T.C.-II, Sukkur for transfer of their case from A.T.C.-II, Sukkur to Sessions Court, Khairpur. This application was allowed and the case was transferred to the Court of Session, Khairpur on 8-6-2007. Earlier bail application made on behalf of the applicant before 1st Additional Sessions Judge, Khairpur where the case of the applicant is pending was heard and rejected on 12-3-2008, hence this bail application.
7. ' Heard learned Advocate for the applicant, learned Assistant Advocate-General for the State and perused the case papers.
8. ' Learned counsel for the applicant submits that the accused is innocent and has falsely been implicated in this case due to enmity with the police officials; that neither the name of the applicant is mentioned in the F.I.R. As a culprit of this case nor his identification parade after his arrest was held to identify him as culprit of this case; that the only allegation against the applicant is that his name was disclosed, by co-accused before the police as their companions, however, the statement given before the police is not admissible under Articles 38 and 39 of Qanun-e-Shahadat Order, 1984. Thus, if the said statement of co-accused is excluded from the consideration, then there is nothing on the record to connect the applicant with the commission of this crime. He further submits that the applicant is behind the bars for the last about five years but his case has not been proceeded; that after the remand/transfer of the case to the Court at Khairpur no evidence has been recorded by the trial Court, therefore, there is no possibility that the case of the applicant will be concluded in near future. Furthermore as per report of M.S. G.M.C. Hospital, Sukkur the applicant is chronic patient of Hepatitis-C infection, therefore, even on this count further detention of the applicant in jail will be detrimental to his life. In support of his contentions, learned counsel relied upon 2003 M LD 19, in which bail was granted after about three years of arrest of the accused on the ground that expeditious and fair trial of the case is fundamental right of accused. It was further observed that indefinite delay in imparting justice is likely to cause erosion of public confidence in the judicial system. He has also referred to 2008 PCr.LJ 449, in this case, accused was granted bail after about 2-1/2 years of his arrest on the similar grounds which were referred to in the earlier decided case. He, therefore, requests for grant of bail to the applicant.
9. ' Learned A.A.-G. Has opposed this application and submitted that the accused is involved in a heinous case of murder, as well as a case of robbery of the motorcycle; that for the alleged offence punishment provided is death sentence or life imprisonment, therefore, case of the applicant falls within the prohibitory clause of section 497, Cr.P.C., therefore, on this ground also applicant is not entitled to the grant of bail.
10. ' That so far as the delay in disposal of the case is concerned, learned A.A.-G. Further submits that prosecution is not responsible for the same as once case of the accused was decided by the A.T.C.-II, Sukkur and thereafter on appeal same was remanded for retrial. Thus, the delay in the disposal of the case has occurred because of legal complications involved in this case, therefore, prosecution cannot be held responsible of the same; that earlier bail application before the trial Court was made mainly on the point of illness of the applicant, but as no final medical certificate was produced before the trial Court to the effect that the applicant is suffering from serious illness and his further detention in jail will be detrimental to his life, therefore, same was rejected; that in the instant case, applicant has tried to get concession of bail on medical ground but when no final medical certificate has been issued, he has taken other ground of delay in disposal of this case.
11. According to learned A.A.-G. No case for grant of bail has been made out at this stage. He, therefore, requests for rejection of this bail application.
12. ' I have considered the contentions made at Bar and have also gone through the material available on record.
13. Contentions of learned counsel for the applicant that the name of this accused has not been mentioned in the F.I.R. As a culprit of this case and further more after his arrest no identification parade to establish his identity as an culprit of this case was held is not disputed by the prosecution side. The only allegation against the applicant is that his name was disclosed by co- accused before the police, as their companion. The said statement of the companions of the applicant given before the police has no evidentiary value, therefore, same cannot be considered as a valid piece of evidence against the applicant. Even no fire-arm was recovered from the possession of the applicant after his arrest. He is detained in custody for the last about five years and there is no likelihood of the conclusion of trial in near future. Furthermore, some evidence on the record is available to show that the applicant is suffering from Hepatitis-C.
14. ' In view of above discussion of the case, I am of the view that the case for grant of bail to the applicant at this stage is made out. I, therefore, allow this application and order that the applicant be released on bail on his furnishing surety in the sum of Rs,2,00,000 with P.R. Bond in the like amount to the satisfaction of trial Court.
15. ' Before parting with this order, I would like to direct learned trial Court to dispose of this old case of 2003 within six months without fail under intimation to this Court. Learned trial Court will be at liberty to cancel the to the accused if during trial he is found to be misusing the facility of bail by not attending the Court etc.