1. ' SHAHID ANWAR BAJWA, J.---The incident took place on 29-6-2003. Six persons were murdered and one person was seriously injured. Present applicant was subsequently lodged in jail in connection with another offence and from there on 26-12-2005 he was arrested in connection with crime No,23 of 2003 at P.S. Faiz Muhammad Narejo, out of which F.I.R. This criminal bail application has arisen. First bail application submitted by the present applicant was dismissed by the Court below on 26-6-2006. Second bail application was submitted by the applicant before the trial Court and it was dismissed on 23-6-2008. Thereafter 3rd bail application was filed by the applicant, which has been dismissed by the Court below vide order, dated 10-8-2009. Thereafter this bail application has been filed in this Court.
2. Originally there were 11 accused persons. 8 of them were let off by the police. However, an application under section 193, Cr.P.C. Was filed and that application was allowed. Subsequently those 8 persons have been granted bail. Two of the accused persons are still absconders; 11th being the present applicant. Interim challan was submitted on 19-2-2004.
3. ' Learned counsel for the applicant submitted that even charge has not yet been framed because of the absconding accused persons. He further submitted that the applicant is not responsible for the delay and has been languishing in jail for last more than four years without any single tangible step being taken in the trial. Learned counsel relied upon Manzoor Khan v. Kamir and 4 others (1972 SCM R 207) wherein it was observed that it is not intention of the law to keep under-trial prisoners, including thosc charged with capital offences without trial for inordinately long periods without any satisfactory explanation or reason to justify that action. The Supreme Court maintained the order of the High Court by which bail and had been granted, but observed that if on the conclusion of the inquiry, the learned Magistrate finds that it is a case for commitment, the bail allowed to the respondents can be cancelled and they can be committed to custody.
4. ' Learned counsel also relied upon Ghulam Abbass alias Abasi and others v. The State (PLD 2005 Karachi 255) in which case a Division Bench of this Court after extensively referring to the case-law, observed 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that the delay was acknowledged as the statutory right by the legislation but for the best known wisdom same has been Withdrawn but as discussed in above noted cases, bail has always been conceded by the apex Court even when such provisions were not available on the Statute Book and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 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.
5. Even in cases on the assessm ent of the police papers and conduct of the prosecution 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 (2002 SCM R 282) 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."
6. ' Learned counsel also relied upon Munawar alias Munoo v. The State (2009 YLR 80) in which accused was behind bars for last more than three years and no progress was forthcoming in the trial. It was observed by Single Judge of this Court that accused could not be kept for an in definite period as a punishment.
7. ' Learned DPG submitted that six persons have lost their lives. 35 empties have been recovered from the scene of incident and the applicant is directly implicated and named in the F.I.R. He submitted that crime falls within prohibitory clause of section 497, Cr.P.C. However, he frankly submitted that the accused is not responsible for delay. He, therefore, suggested that order be given to the trial Court to separate the case of present applicant and other accused who are in attendance from the case of absconders, charge be framed and trial be proceeded.
8. ' I have considered the submissions made by the learned counsel and have also gone through the case law cited by the learned counsel. There is no cavil with the proposition that a person cannot be kept in custody indefinitely, particularly when he is not responsible for delaying the trial. At the same time, mere factum of delay in trial on its own cannot be treated as sufficient ground for grant of bail. High Court while exercising its supervisory jurisdiction should not only ensure that a person be not indefinitely kept behind bars and the trials allowed to go on and on with no end. It should also intervene in such cases and pass appropriate directions to the Courts below for expeditious trial. It must not be lost sight of that while being lodged in jail is an agony, being prosecuted in a Court even while one is on bail, is also not a pleasant experience. In the present case, offence is of very serious nature; Six human beings have lost their lives. Therefore, in my opinion propriety demands that the trial Court be directed to separate the case of the present applicant and the accused who are in attendance from the case of absconders and to frame the charge. Thereafter, trial Court is further directed to record evidence of the complainant and after statement of at least one witness has been recorded (that exercise should be completed within a period of two months), the present applicant shall be at liberty to file a fresh bail application.
9. ' This bail application is disposed of in the above terms.