' ARSHAD SIRAJ MEMON, J.--- Through this application the applicant/accused has sought bail in F.I.R. No,186 of 2005 registered in Police Station Pak Colony, .Karachi under sections 302/ 324/34, P.P.C. After his bail application was rejected by learned 1st Additional Sessions Judge Karachi West vide order dated 4-5-2009 in C.S.No,627 of 2005.
2. The case of the prosecution in brief is that on 21-8-2005 at about 8-30 p.m. One complainant Qadeer Ahmad, resident of Mohallah Jahanabad filed complaint that he was present at Jahanabad Chowk when 5 persons riding on two motorcycles arrived who were known to him namely Nasir Bangali, Bilal (Applicant/Accused) Tariq, Sajid and Akbar. It was stated in the F.I.R.
That Nasir was holding Kalashnikov and other 4 were holding TT. Pistols. It has been further stated that all of them started firing towards one Dhaba (shop), one Muhammad Rafique being neighbour of the complainant received bullet injury and 'fell down whereas one Amin also sustained injuries.
In the meanwhile, police mobile arrived and all the people involved in the firing made their escape good: Muhammad Rafiq was seriously injured who was shifted to Civil Hospital where Doctors reported that he has expired. Complainant Qadeer Ahmad along with Abdul Waheed and other witnesses witnessed the incident.
3. The learned counsel for the applicant/accused submitted that the applicant was arrested on 21- 3-2006 and that the statement of Ahmed s/o Yar Muhammad under section 161, Cr.P.C. Does not specify any specific role against the present applicant/accused as such case.Of further inquiry is made out. He further submitted that one Muhammad Antin, who was also injured in the incident, has also neither disclosed the name of the present applicant nor he has assigned any specific role to the present applicant. 'He submitted that vicarious liability is yet to be determined. The learned counsel extensively referred to the case diary which has been annexed with the bail application at pages 35 to 63 of the file and with reference to case diary he submitted that applicant was not produced before the trial Court since 3-4-2006 and only on two occasions i.e. 9-7-2007 and 30-7- 2007 the applicant was produced. He further submitted that no charge has been framed till date and, therefore, prayed that the applicant be admitted to bail. The learned counsel has relied upon judgment in the case of Yaroo v. The State 2004 SCM R 864, Ghulam Abbas Ilyas Abasi and others v.
State PLD 2005 Kar. 255, Gul Beg alias Nangi v. State 2005 PCr.LJ 147 and Aarab alias Katoo v. State 2005 PCr.LJ 555.
4. On the other hand, the learned counsel for the State vehemently submitted that the learned 1st Additional Sessions Judge Karachi West has rightly refused the bail to the present applicant/accused as the applicant is involved in heinous crimes/offences. The applicant is also involved in several other. F.I.Rs, and no case of bail at present stage is made out. He therefore prayed that application be dismissed.
5. I have considered the arguments made at Bar and have perused the record with the assistance of learned counsel. The present applicant has been nominated in the F.I.R. Along with' other co- accused and as per the contents of the. F.I.R. All the accused persons fired upon one Dhaba (shop), in, consequence of such firing one. Muhammad Rafique received bullet injuries and succumbed to death due to the injuries and was declared dead .By the Civil Hospital. Mere perusal of the F.I.R.
Shows that no specific role has been assigned against the present applicant and the learned counsel's arguments that vicarious liability has yet to be determined is manifestly clear. In the circumstances, case of further inquiry has been made out by the learned counsel for the applicant.
6. Further to the above position, perusal of the case diary shows that the applicant was arrested in some other crime No,28 of 2006 and 29 of 2006 and the applicant was arrested on 3-4-2006. From 3-4-2006 to 27-6-2007 the present applicant was not produced before the learned trial Court for which there is no explanation in the diary sheet and the narration is simple that accused has not been produced from Jail. Further perusal of the diary sheet shows that on 9-7-2007, 30-7-2007, the present applicant was produced. Thereafter, from 16-8-2007 till 4-5-2009 the present applicant was not produced before the learned trial Court by the Jail authorities for which also there is no explanation in the case diary.
7. It may be observed that in cases where under trial prisoners are not produced by the Jail authorities before the learned trial Court, an Honourable Division Bench of this Court has examined the plethora of judgments, in the case of Ghulam Abbas alias Abasi referred supra where it was observed 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, failed to produce the accused without any justification and/or delaying tactics used by persons other than the accused including the complainant. It was further observed that there is a consensus opinion that if the delay is so shocking and scandalous it amounts to abuse of process of law. It was further observed that 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 the cases on the assessment of the police papers and conduct of the prosecution, it could be seen that there is no future likelihood of conclusion of trial foreseeable future as for instance the proceeding against the absconding accused take time or where the trial for any other reason could not be concluded. The Honourable Division Bench of this Court relied upon the dictum laid down by the Honourable Supreme Court of Pakistan in the case of Muhammad Saeed Mehdi 2002 SCM R 282 wherein it has been observed that object of criminal trial is to make accused to face trial and not to punish as under trial prisoner, expeditious trial was a recognized right of accused persons.
8. In suo motu Court reference v. State PLD 2008 Kar. 285 various aspects of delay in trial were considered by the Honourable Division Bench of this Court. In the final analysis certain directions were given by the Honourable Division Bench which are reproduced inextenso for ready reference and convenience:--- "Mr. Rasheed Alam, Special Secretary, Home Department, Government of Sindh, has filed a statement in writing to the effect that appropriate amendments in the Prisons. Rules will be effected whereby the administrative control of. Court Police would be shifted to the Prison Department. Necessary budgetary sanctions for fuel and maintenance and those vans shall be provided to the Prison Department and some personnel from the Police Department would be placed on deputation to the Prison Department till appropriate escort force is raised by the latter. In this context, exercise for seeking formal approval of the Chief Minister and its amendment in relevant Rules has already been commenced.
' We may add that this would be applied to control the delay in production of prisoners in Court and ought to be taken without further loss of time. Indeed, the problem of shortage of manpower, particularly unskilled manpower, can be addressed without much delay in making improvement through formal legal procedure. The Prison Industry itself could be harnessed for providing ancillary service for maintenance etc., which could be both efficient and beneficial for the prisoners.
' Mr. Rasheed Alam, however, pointed out that despite best intention of the Government, it might not be possible to fulfil all these commitments instantly and will have to be carried out in phased manner. Indeed we are conscious of objective realities and appreciate his concern. At the same time, however, it needs to be clearly borne in mind that all public duties need to be performed within a reasonable time. At the same time it will be kept in view in the circumstances of this case, that prolonged detention without trial could be treated as detention in unlawful manner not merely liable to be struck down but also entitled the detainee to be compensated by the detaining Authority. We would further direct that the Special Assistant to M.I.T. To require all the trial Courts to keep record of cases where under-trial prisoners required to be produced were not produced in their respective Courts and submit the same to this Court in the monthly returns which would be periodically communicated to the I.-G. Prisons, who will seek appropriate explanation from the Superintendent of every Prison and communicate the same to this Court."
9. As observed in the preceding paragraphs, the present applicant was not produced by the Jail authorities, which tantamount to abuse of power and delay. The directions contained in suo motu Court Reference referred supra have, not been adhered to by the learned trial Court in the present case as the perusal of diary sheet shows that no necessary measures were taken for expeditious conclusion of the trial. In each case nature of delay is to be assessed and examined on its own merits and where the Court comes to the conclusion the delay is unexplained, repulsive and unconscionable and that accused or any person on his behalf has not attributed in causing delay, the Court may enlarge the accused on bail in cases where bail is extended on the ground of delay, surety may be substantial to ensure appearance of the accused to face trial.
10. I may with utmost humility state that expeditious and transparent trial should be hallmark of dispensation of administration of criminal justice, which factors should be borne in mind by all the parties involved in a criminal trial including the Presiding Officer, which shall create confidence in the system of justice in our country.
11. Keeping in view the above discussions, the present applicant is admitted to bail subject to furnishing solvent surety of Rs,200,000 (Rupees Two Hundred Thousand) and with P.R. Bond of like amount to the satisfaction of the trial Court.
12. Before parting with this order, the learned trial Court is directed to expedite the matter and compel the prosecution, jail authorities as well as complainant, by adopting legal measures to proceed with the trial expeditiously, preferably within 4 months from the date of this order and furnish report to the M.I.T. Of this Court positively on or before 30-11-2009. It is further clarified that in case the present applicant unnecessarily seeks adjournment or abstains from attending the trial, the trial Court would be at liberty to take such measures to arrest the applicant without any further orders from this Court.
' In above terms, this bail application is disposed of.