Petitioner Muhammad Arshad through the instant petition has sought for post arrest bail in case F.I.R. No, 536 registered under Sections 302, 148, 149 PPC with Police Station Chunian, District Kasur on 22.09.2005.
2. Briefly the prosecution case as per the FIR is that on 22.09.2005 at about 4.00 a.m. Asghar Ali and others, having firearms, in prosecution of the common object of the unlawful assembly formed by them, came to the Dera of complainant and there they committed the qatl-e-amd of his father Muhammad Ameen and brother Muhammad Altaf. Muhammad Arshad fired with gun at his father hitting on his right thigh.
3. It may be mentioned here that the petitioner earlier had sought for similar relief by way of Crl.
Misc. No,7250-B/2009 and the same was opted to not to be pressed by his side and it was disposed off accordingly and with the same direction was given to the learned trial Court by His Lordship S. Ali Hassan Rizvi, J (as he then was) on 31.07.2009 to expeditiously conclude his trial but preferably within a period of four months. However, such direction could not be complied with. He again came up to this Court with another similar petition bearing Crl. Misc. No,5475-B of 2010. This time again, on 28.06.2010, his said petition was disposed of with a direction to the learned trial Court to conclude his trial within one month from the next dale of hearing. The position but remained the same that his trial has not been completed within such period.
4. He now again has came to this Court for the same relief with the instant petition. It may be mentioned here that His Lordship Ijaz Ahmad Chaudhry, J vide his order on 04.08.2010, has been pleased to call for report from the learned trial Court that as to when the case is likely to be concluded and which of the parties is responsible for causing delay in conclusion of the trial. Such report has been received. It would be quite advantageous to reproduce the same herein below to clarify the exact position in the matter at the moment:-- "That captioned case is pending for the evidence of only remaining two PWs namely Muhammad Imran and Muhammad Boota. Despite of hectic efforts of the Court, their attendance could not be procured, because statedly they are POs in some other case.
Further, one of the accused namely Abdul Aziz has also absented himself since 28.05.2010 and now the file is pending for completion of proclamation process against above said accused and file is pending for awaiting proclamation to his extent for 25.08.2010. In this way, it is apparent that earlier delay was due to prosecution, who was failed to complete its evidence despite of availing repeated opportunities for the same and then due to defence side, when one of the accused namely Abdul Aziz absented himself since 28.05.2010".
5. Here it would also be relevant to mention that on 01.06.2010, Mr. Safdar Saleem Shahid, learned'
Additional Sessions Judge, Chunnian, has reported in similar situation to the following effect:-- "The case was entrusted to the Court of other learned brother for trial. Since two cases, in which the complainant of this case was accused, were under trial in this Court. On the application of complaint of this case, the trial of this case transferred to this Court on 19.1.2010 by the order of Hon'ble Lahore High Court, Lahore. 12 PWs were already recorded by the transferee Court. After the transfer of this case to this Court, I recorded the statements of P W. 13 and PW. 14 and now the case is fixed for the remaining prosecution evidence. The complainant of this case has been convicted and sentenced by this Court in another case where he was accused. Imran and Boota eye- witnesses have not turned up to get recorded their statements. They are the only eye-witnesses and according to report PW Imran is P.O. in some other case whereas the whereabouts of other PW Boota were not traced by the Process Server and his statement in that regard has been recorded by this Court. Muhammad Sarwar, SI, who investigated the case, has also died. The complainant of this case was repeatedly directed to produce the remaining prosecution evidence, therefore, there is no chance for the appearance of aforesaid PWs, otherwise all the other remaining 14 witnesses have been recorded by this Court. The counsel for the prosecution does not want to close the prosecution evidence in the scenario of the above said fact. The delay is purely due to . the non- production of eye witnesses by the prosecution. Now the case is fixed for 04.06.2010 for remaining prosecution evidence".
6. This report is interesting and sufficient to decide the question of bail now involved in the instant matter. According to report dated 16.08.2010, made by the above-mentioned learned Judge, it is clear that the delay in fact, has not been occasioned by any act or omission on, the part of the petitioner and instead two PWs in this case, namely, Muhammad Imran and Muhammad Booth are absconders and now an accused, namely, Abdul Aziz has absented himself from the learned trial Court since 28.05.2010 and legal proceedings against him are being taken. The following sentences from the above said report dated 01.06.2010, are significant to understand the situation-- "therefore, there is no chance for the appearance of aforesaid PWs, otherwise all the other remaining 14 witnesses have been recorded by this Court.
The delay is purely due to the non-production of eye-witnesses by the prosecution ".
7. This would show that the direction of this Court twice has not been complied with. He in this matter can't be said to be responsible in any manner. It may also be mentioned here that speedy trial is a right of an accused and the same cannot be denied to him without any just or due cause.
8. His date of arrest has been shown as 13.11.2005. He, thus, is behind the bars for last nearly about five years.
9. He, so, is entitled to the relief prayed for only on the score of twice non-compliance of the direction of this Court and delay in his trial. A In this regard, reliance is placed upon the case of "Gul Hasan Penhyar us. The State (1997 SCM R 390) and "Gul Muhammad and another us. The State"
(2003 M LD 154 Karachi).
10. I, therefore, accept this petition and admit him to bail subject to his furnishing bail bonds in the sum of Rs,5,00,000/- (Rupees five lac only) with two sureties each in the like amount to the satisfaction of the learned trial Court.