' MUHAMMAD TASNIM, J,---This bail application is directed against the order dated 12-10-2009 passed by learned IV-Additional Sessions Judge, Karachi West in Sessions Case No,455 of 2006, F.I.R. No,112 of 2006 under section 302/34, P.P.C. Registered at Police Station Peerabad, Karachi whereby the bail application of the applicant was dismissed.
2. Precisely, the facts of the prosecution case, as per F.I.R, are that the complainant was living with his four brothers. His younger brother Ahmed Khan, the deceased, was a Trailer Driver. His brother had gone from house about 3/4 days before the incident but did not return. The complainant inquired from the owner of the trailer namely Muhammad Ilyas who informed that his brother was with the trailer. Further his uncle Karamullah also informed that the deceased had a quarrel with Kabel Khan and others. On 4-7-2006 at about 3-00 a.m., when he was sleeping in his house, he heard firing voice in the street. He went outside and saw his brother lying in the pool of blood having firearm injuries on his chest and neck. Meanwhile, the police reached at the place of incident and took his brother to Abbasi Shaheed Hospital. He stated that his brother, the deceased, had a quarrel with Kabel Khan and his companions and he has been killed by the companions of Kabel Khan.
3. I have heard Mr. Fazal-ur-Rehman Awan, learned counsel for the applicant and Mr. Sohail Jabbar, learned Deputy Prosecutor-General, perused the record of this case carefully and have gone through the case-law cited at bar.
4. The learned counsel for the applicant has contended that the applicant is innocent and has been falsely implicated in the case due to enmity. He was arrested after five days of lodging of F.I.R.
There is no eye-witness of commission of crime as well as of recovery. The recovery of double barrel gun was effected on 9-7-2006. The applicant has not been nominated by name in the F.I.R.
But he has been challaned. He further contended that more than 3 years and 7 months have passed and out of 20, only two prosecution witnesses have been examined so far and this is a case of serious hardships as he is in custody till date. The applicant has never taken any adjournment but the adjournment has been granted by the learned trial Court, hence the delay in trial is not attributable to the applicant. In support of his aforesaid contentions, he relied upon Abdul Hameed v. State 2003 M LD 19, Aarab v. State 2005, PCr.L.I 555, Gul Beg v. State 2005 PCr.LJ 147, Panjo v. State 1991 PCr.LJ 247 and Gul Muhammad v. State 1974 PCr.LJ 400.
5. On the other hand, learned Deputy Prosecutor-General has stated that he concedes grant of bail on the ground of hardships but he opposed the same on merits. He further submitted that matter was fixed before the learned trial Court in all 96 dates of hearing upto 26-10-2009, 17 times accused was not produced, 42 times he was produced in Court but the matter could not proceed and 7 times the Court was lying vacant.
6. In the case of Abdul Hameed (supra) learned Single Judge, while disposing of bail application, observed as under:- "Expeditious and fair trial is a fundamental right of an accused person. The intention of law is that a criminal case must be disposed of without unnecessary delay. It will not be difficult to comprehend that inordinate delay in imparting justice was likely to cause erosion of public confidence in the judicial system on one hand, and on the other hand, it was bound to create a sense of helplessness and despair and feelings of frustration and anguish apart from adding to their woes and miseries."
6. In Arab's case (supra) the learned Single Judge of this Court, while disposing of bail application, observed as under:--- "In the cases cited above the longer period of detention without trial has been considered as a ground of hardship. Instantly, the accused/applicant is in custody for a period of more than three years and nine months, but the trial has not yet taken the on set for no fault on the part of the accused. Mr. Muhammad Ismail Bhutto learned State Counsel has thus, rightly conceded to grant of bail.
7. In the case of Jagday (supra) learned Single Judge of Lahore High Court, while disposing of bail application, observed as under:--- ".... It has been observed that the petitioner had been arrested as far back as on 5-7-2002. More than 26 months have elapsed since his arrest but no worthwhile progress has been made in the trial. Although the statutory provisions recognizing accused persons right to claim bail on account of delay have been repealed yet the repeal of the said provisions do not give a carte blanche to the prosecution to prolong the trial at its whims adding to the agonies of the under-trial prisoners and their dependents."
8. Lastly, in the case of Gul Beg (supra), learned Division Bench of this Court, while disposing of bail application, observed as under:--- ".... It is not disputed that the applicant is continuously in custody for last more than four years and trial has not been concluded so far. We find ourselves in respectful agreement with the view taken by the Honourable Supreme Court in the above cited cases that delay per se is no ground for grant of bail but in the cases where it appears to be shocking and scandalous, as in this case, the Court can exercise its discretion in favour of an accused."
10. The above quoted judgments fully support the case of the applicant.
11. I have given due consideration to the arguments of both the learned counsel and found that the applicant is continuously in custody for about 3 and 1/2 years and the trial has not been concluded so far, hence the delay is shocking and scandalous. It is an admitted fact that the complainant was not an eye-witness of the incident, however, he has nominated Kabel Khan and others who had quarrelled with Nasir Khan and Ahmed Khan, the deceased, which has been communicated to him by his uncle. Said Kabel Khan has not been implicated. It is also an admitted fact that in F.I.R, which has been lodged after three hours of the occurrence, the complainant has not uttered a single word regarding presence of other prosecution witnesses.
12. In this case on the basis of belated statement of P. Ws. Nasrullah and Nazar Khan, the applicant and co-accused Sher Jan and Razzaq were also implicated, however the above co-accused were not challaned. It is strange that P.W. Nasrullah has claimed that the deceased was his cousin who was lying dead in the street but neither he or his uncle Haibat Khan informed the complainant or to the police that he had heard two fire shots and the applicant and Sher Jan were standing near the dead body and chosen to leave the place of occurrence quietly. In such circumstances, this is a case of further inquiry.
13. In view of the above facts and circumstances, I am inclined to grant bail to the applicant as the applicant has made out a case for further inquiry, therefore, bail is granted to the applicant in the sum of Rs,2,00,000 (Rupees two lac only) subject to furnishing solvent surety with PR Bond in the like amount to the satisfaction of the learned trial Court. The observations made in the order are tentative in nature, which shall not come in the way of trial Court while deciding the case. The application is allowed.