Through this petition under Section 497 Cr.P.C. the petitioner seeks post arrest bail in case F.I.R.
No,72/08 dated 22.3.2008 registered under Sections 302, 109, 148/149 P.P.C. with Police Station Fazilpur District Rajanpur at the instance of Sabir Hussain son of Ahmad Bakhsh.
2. The petitioner applied for bail before the learned Sessions Judge, Rajanpur which was declined by learned Additional Sessions Judge Rajanpur vide his order dated 15.12.2008. Earlier the same petitioner Allah Bakhsh son of Hajan had filed Crl. Misc. No,1239-B of 2009 before this Court which was dismissed as not pressed on 8.5.2009 with the direction to the learned trial Court to conclude the trial of the case within a period of six months. Now the petitioner has filed this second bail petition in this Court on 26.10.2009 for post arrest bail in the above mentioned case.
3. The prosecution story in brief, according to the FIR, is that the petitioner caused fire-arm injury with his rifle hitting the right arm of brother of the complainant.
4. Learned counsel for the petitioner contended that learned trial Court has not concluded the trial within the stipulated period of six months as ordered by this Court in its order dated 8.5.2009 passed in the Crl. Misc. No,1239-B of 2009 even near about six months have elapsed. On 1.12.2009, report was called from the learned trial Court why the trial is not completed within six months. The learned trial Court sent letter of Request No, 193 dated 10.12.2009 for extension of time giving details of non conclusion of the trial in the following terms:-- "It is submitted that the case cited in the subject is pending in this Court for trial in which 16 accused are facing trial. After submission of challan the accused persons were charge sheeted vide order dated 15.12.2008 and the prosecution was directed to produce the evidence. The case was adjourned for submission of power of attorney on behalf of the defence side, correction of names of the witnesses, non production of accused persons from jail due to bomb blast in Dera Ghazi Khan, non service of the witnesses on behalf of the prosecution, strike of the bar, non taking interest of the complainant to produce the witnesses and non-availability of defence counsel till 2.5.2009. Since framing of charge till this time near about 11/12 dates 81 hearing were given and this case was adjourned for 13.6.2009. On this date of hearing two witnesses were recorded and this case was adjourned for another dated i,e, 21.5.2009. On this date I was on leave, so the case was adjourned to 6.6.2009. In the meanwhile an order dated 8.5.2009 passed in bail application of Allah Bakhsh versus State referred to above in Crl. Misc. No,1239- B/09 was received in this Court on 25.5.2009 by which this Court was directed to conclude the trial of this case within six months. So under the direction of the Honorable High Court the proceedings of this case were being carried out impressing upon the advocates and the prosecution branch to get conclude the trial within specified time."
Learned counsel further submitted that the injury attributed to the petitioner in the FIR is not on the vital part and is alleged on the left arm. The fatal injury attributed to Muhammad Rafique on Wakhi of the deceased. The cause of death, attributed to another accused Shahid which is inflicted on Wakhi' of the deceased. On 22.12.2009 complainant was present in Court who undertook that he will produce the remaining prosecution witnesses on the next date of hearing. The report submitted by the learned trial Court reveals that on subsequent date after 22.12.2009 no witness of the prosecution was present before the learned trial Court. On some previous dates trial was not progressed on account of the strike of the Members of the Bar on local, provincial and national issues. The learned trial Court has also observed in his report that trial Court would make efforts to conclude the trial within 2/3 months. With reference to 'Muhammad Aslam vs. The State" (1999 SCM R 2147) learned counsel submits that if the trial is not concluded within the time specified' by the High Court for conclusion of the trial the bail was allowed.
5. Learned DDPP has vehemently opposed the grant of post arrest bail.
6. I heard the learned counsel for the petitioner and the learned DDPP for the State.
7. Speedy trial is the right of the accused. The accused is behind the bars since 15.12.2008. This Court fixed six months for conclusion of the trial which is not concluded within the stipulated period even 21/2 months more are elapsed. Learned counsel for the petitioner has rightly placed reliance on 'Muhammad Aslam vs. The State" (1999 SCM R 2147, in which case Hon'ble Supreme Court allowed bail in a case of Section 302 PPC, in which trial was not concluded within a period fixed by High Court and no explanation was given by the learned trial Court for non-conclusion of trial within the prescribed time by High Court. In this case trial was not concluded within six months as directed by this Court vide order dated 8.5.2009 in Crl. Misc. No,1239-B of 2009. Even 2(1/2) months more are elapsed. The petitioner cannot be kept behind the bars for an indefinite period. In "Tariq Bashir and 5 others vs. The State" (PLD 1995 SC 34) the Hon'ble Supreme Court has observed that:-- "question of benefit of reasonable doubt is necessary to be determined not only while deciding the question of guilt of an accused but also while considering the question of bail because there is a wide difference between the jail life and a free life. So, benefit of reasonable doubt about occurrence itself, identity of the accused, part allegedly played by him in the occurrence, his presence on the spot and on the question of his vicarious liability, would go to him even at bail stage. It is by now judiciously recognized that there is a tendency in our country to involve innocent persons with the guilty persons. Once an innocent person is falsely involved in a serious case then he has to remain in jail for considerable time. Normally it takes two years to conclude the trial.
When a person is detained in the jail, all his dependents also suffer hardships. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case, albeit his acquittal in the long run. So, whenever reasonable doubt arises with regard to the participation of an accused person in the crime, he should not be deprived of the benefit of bail. The bail can neither be withheld nor cancelled as punishment."
8. If the petitioner is guilty he will be ultimately convicted by the learned trial Court and if he is acquitted there will be no compensation for his prolonged imprisonment. The main fatal injury is not attributed to the petitioner which is attributed to other co-accused, namely, Muhammad Rafique which was caused on the `wakhi' of Bahawal Hussain deceased. Although Section 34 PPC is also there sharing of the common attention which will be determined after recording of evidence in this FIR near about 26 accused were nominated petitioner and others co-accused are behind the bars since their arrest. Some of the accused were bailed out from the learned trial Court and some of them are bailed by this Court.
9. In the light of above discussion and dictum laid down in 'Muhammad Aslam vs. The State" (1999 SCM R 2147), I am inclined to exercise my discretion for grant of post arrest bail. This bail petition is allowed and the petitioner is admitted to bail subject to his furnishing bail bond in the sum of Rs,200,000/- with one surety in the like amount to the satisfaction of learned trial Court.