1. ' SYED PIR ALI SHAH, J.--- This is a criminal bail application filed by the learned counsel for the applicants against the impugned order, dated 6-2-2009 passed by Vth Additional District and Sessions Judge, Karachi South, whereby the learned Vth Additional District and Sessions Judge, Karachi South has rejected the bail application of both the above named applicants/accused.
2. ' Brief facts of the case are that complainant P.C. Sarfraz Mehmood 13162 had registered the F.I.R. On 17-12-2006 stated therein that he was at night duty, P.C. Suleman informed him on mobile phone that Zahid Iqbal had sustained bullet injuries and asked him to come to the Civil Hospital. He reached at Civil Hospital and found there dead body of his cousin namely Zahid Iqbal son of Shukar Din posted as P.C. Saddar Town. There was police mobile also. He was told that Zahid Iqbal was sitting on computer in Booth No,1 at Shaheen Computer Internet Cafe Shop No,41, Azeem Plaza, Siddique Wahab Road, Garden Karachi. At about 4-15 a.m. Unknown accused person/s entered in the cafe and fired upon him, due to which he sustained injuries on his face, head and left shoulder.
3. All the bullets went through-n-through his body. He succumbed to injuries. Complainant thereafter lodged the complaint against the unknown accused persons for having murdered his cousin, and against whom legal action may be taken.
4. ' I have heard learned counsel for the applicants as well as learned Additional Prosecutor-General, Sindh.
5. ' Learned counsel for the applicants mainly contended that applicants/accused are innocent and they have been falsely implicated in this case with the mala fide intention of the local police. He further contended that the name of the applicants/accused does not transpire in the F.I.R. And no description of features of applicants/accused has been described in the F.I.R. And there is no direct evidence against the applicants/accused. It is also contended that both the applicants/accused were arrested on 18-1-2007 in F.I.R. No,14 of .2007 under sections 353/ 324/168/34, P.P.C. Police Station Kalakot and falsely implicated in this case while submitting the challan after the delay of one month and fifteen days of lodging the F.I.R. Without any plausible explanation, which is the great violation of section 173, Cr.P.C. And such delay caused the serious doubts in the prosecution case. That there is no identification test parade conducted before any competent Court of law for both the applicants/accused nor any confessional statement was recorded under section 164, Cr.P.C. Of both applicants/accused. He contended that prima facie on the merits, there is no any single piece of evidence against both the applicants/accused, as the eye-witnesses of alleged incident have clearly stated in their statement under section 161, Cr.P.C. And further in their depositions before the trial Court that they neither can identify the accused, who made firing during such incident nor they held responsible for the same to anyone. The applicants/accused are confined in jail since 18-1-2007 and charge was framed on 21-5-2007 and prosecution has examined five P. Ws. Till today, who have not supported the prosecution case. He further stated that nothing incriminating have been recovered from the possession of both the applicants/accused.
6. The learned counsel for the applicants/accused had relied upon cases reported (1) 2004 YLR 2592,
(2) 2009 YLR 296, (3) 2003 M LD 19, (4) 2008 YLR 995, (5) 2008 YLR 1179, (6)2007 YLR. 824, (7) 1995 M LD 1457, (8) 2008 YLR 1632, (9) 2007 MLD 19.
(1) 2004 YLR 2592 is with regard to delay in trial, on the ground, that Court has to see hardship while considering the condition of the jails.
(2) 2009 YLR 296, bail was granted, when there was delay in conclusion of the trial and no adjournment was sought by the accused. In the instant case, as much as three adjournments were sought.
(3) Citation i.e. 2003 M LD 19, is on the ground of hardship, when there is inordinate delay of the trial of the accused. In the instant case, trial of the accused has commenced and as much, as five witnesses have been examined.
(4) 2008 YLR 995 (Karachi) is to the effect of grant of bail when other circumstances of the case are also in favour of the accused and it was case of further inquiry.
(5) 2008 YLR 1179, is to the effect that eye-witnesses declined to identify the accused and as such he was granted bail.
(6) Bail was granted in a case reported in 2007 YLR 824, when the delay in holding trial, due to fact that the complainant had been moving adjournment applications. The fact and circumstances of the present case are altogether different.
(7) 1995 M LD 1457, it has been held that there was no other material of the alleged conspiracy hatched in the matter. The present case all together on different footing and as such there is no allegation of conspiracy.
(8) Citation 2008 YLR 1632 is to the effect that accused was implicated in suspicion. In present case, accused was subjected to identification held and he was duly identified and picked up by the P.W. P.C. Muhammad Ayub.
7. ' Learned Prosecutor has vehemently opposed to the grant of bail application on the ground that in this matter prosecution has already examined as much as five witnesses who have fully supported the prosecution case.
8. ' As mentioned above, this incident occurred on 17-12-2006 at 4-15 a.m. Of course, as per F.I.R. Three unknown persons had entered into Shaheen Internet Cafe, Shop No,11, Azeem Plaza, where deceased Zahid Iqbal was busy on computer in Booth No,l. The prosecution after necessary investigation and arresting present applicants/accused sent up for trial of the offence under section 302, P.P.C. Along with this bail application learned counsel for the applicants has produced certified copies of the depositions of P.W.1 Sarfraz Mehmood, P.W.2 Muhammad Ayub, P.W.3 Muhammad Suleman, P.W.4 Dr. Qarar Ahmed and P.W.5 Iqbal Ahmed Statement of P.W.1 Sarfraz Mehmood is to the effect that on receipt of information of this incident he rushed to the Civil Hospital where he found dead body of Zahid Iqbal. After post-mortem examination the dead body of Zahid Iqbal was handed over to him which he took to the native place i.e. Toba Tek Singh. He was put only three questions by the counsel for accused Javed while he was not cross-examined by the counsel for accused Yaqoob Ali though opportunity was provided.
9. ' P.W.2 Muhammad Ayub has deposed that lie was serving at Shaheen Internet Cafe at Azeem Plaza. He has stated that in his presence three persons entered into Internet Cafe and fired upon Zahid Iqbal who was busy on computer in Booth No,
1. He noticed that the culprits made their escape good on motorcycle. This witness was not cross-examined by the counsel for the accused Javed. However, he was cross-examined by the counsel for accused Yaqoob and only four questions were asked from him.
10. ' Third witness P.W. Muhammad Suleman was absolutely not cross-examined by defence counsel for both the accused. The statement of Dr. Qarar Ahmed who conducted the post-mortem was also recorded by the trial Court who was also not cross-examined by the counsel for accused Javed. However, only four questions were asked from him by the counsel for accused Yaqoob.
11. The star-witness of the prosecution is P.W.5 Iqbal Ahmed who has narrated the facts of incident as he witnessed that the three persons had entered into the Internet Cafe on the eventful day at relevant time and that these persons after murdering Zahid made their escape good from the spot.
12. His further statement is that on 24th or 25th January, 2007 identification parade of the arrested accused persons was carried out before the Magistrate and, as such, he had identified both the accused persons present in Court. 164, Cr.P.C. Statement of this witness was also recorded by the Magistrate.
13. ' Along with, these depositions learned counsel for the applicants has also filed update case diaries. Perusal of the same shows that on 4-7-2007 P.Ws. Were present but due to the absence of learned counsel this murder case could not be proceeded. Again on 20-9-2007 case was adjourned due to absence of the defence counsel. On 11-12-2007 accused Yaqoob moved an adjournment application and as such, the case was adjourned.
14. This bail application has been pressed mainly on the ground of hardship but looking to the circumstances of the case the depositions of the witnesses in the manner of which they were cross-examined and the case diaries which reveal that on certain date of hearings adjournments were sought by the accused side.
15. In view of above cited evidence led by the prosecution on record, it cannot be altogether outrightly concluded that the applicants/accused are innocent. Their case does not fall within the ambit of case of further enquiry. In this case an innocent man have allegedly been murdered. Case diaries does not show that witnesses are not traceable or not available. This being the position, appropriate course will be to direct the trial Court to proceed with this case expeditiously.
16. Accordingly, trial Court is directed to expedite the matter and to proceed with the case by taking coercive measures to procure the attendance of the witnesses and conclude the trial of the case within a period of four months. Trial Court is required to submit progress report of each and every date of hearing before this Court. This bail application merits no consideration and, as such, applicants/accused are not entitled for bail. Their bail application stands dismissed. The observations if any made above shall not prejudice the mind of trial Court in any case. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.