1. MAQBOOL AHMED AWAN, J.---Mureed son of Bachoo, facing trial in the Court of learned Ist.
2. Additional Sessions Judge, Thata, in Sessions Case No,7412005 for offences under sections 302, 337- A(i), 109, 504, P.P.C. In Crime No, 8 of 2005 of Police Station Keety Bandar, applied for bail on the ground of hardship and his prayer was turned down by the learned trial Court on 15-11-2008.
3. Prior to filing of present application for bail, the applicant has also filed the Criminal Bail Application No,486 of 2009, which was dismissed by this Court for want of prosecution on 24-6-2009. Hence the present application.
4. Precisely, the case of the prosecution as per F.I.R. Lodged by complainant Raboo Jokhio at Police Station Keety Bandar on 23-5-2005 are that he and Usman, his father, and Abdullah, his brother, were working in their fields, where the applicant armed with axe, Sharif armed with hatchet and Bachoo armed with Lathi came there and asked the complainant party as to why they are working in the said lands, which belonged to them; that Usman, the father of complainant told them that the said land was given to him as result of private partition held by the headman of the locality. On this accused became annoyed and the applicant caused sharp side of hatchet blow on the head of Usman with intention to commit his murder, who on receipt of injury fell down on the ground; that accused Sharif caused hatchet blow to P.W. Abdullah, the brother of complainant and accused Bachoo lathi blow to the complainant. The complainant party raised cries, which attracted P.W. Habibullah, the brother of complainant, who had seen the accused at the spot. The complainant party found Usman having injury on his head and was dead. The complainant, thereafter, came at the Police Station, lodged the F.I.R. Against the accused and alleged that at the instigation of co-accused Pinjay alias Porho, committed the murder of deceased Usman and caused injuries to him as well as to P.W. Abdullah.
5. The police took up the investigation, arrested the applicant on 24-5-2005 and after completing usual investigation submitted the challan in the Court of learned Civil Judge and Judicial Magistrate, Sakro Gharo, who sent up the same to the Court of learned Sessions Judge, Thata, wherefrom the case was received by the learned Ist. Additional Sessions Judge, Thata for trial.
6. On 6-2-2006, the charge against the accused was framed to which they pleaded not guilty and claimed to be tried.
7. On merits, the applicant filed the Criminal Bail Application No,756 of 2008 for grant of bail and this Court upon hearing, while dismissing the application of the applicant, directed the learned trial Court to complete the case within three months from the date of communication of the order and report compliance through MIT of this Court.
8. Mr. Mahmood. A Qureshi, the learned counsel for the applicant has argued that the applicant has been arrested on 24-5-2005. The learned trial Court framed the charge on 6-2-2006 and only P.W.1.
9. Waciar Hussain Memon and Dr. Abdul Haleem, out of eight witnesses, were examined and no further progress in the case is made. Per learned counsel, the applicant is behind the bars since last about more than 4 years and the trial has not yet been concluded. Per learned counsel, it is well-settled that a person cannot be detained behind the bars for an indefinite period. Per learned counsel, while deciding the Bail Application No,756 of 2008, this Court directed the learned trial Court to decide the case within a period of three months. But the trial has not yet been concluded in view of the directions given by this Court. ' In support of his contention, the learned counsel has relied upon the following cases:--
(1) Manzoor Khan v. Kamir and 4 others reported in 1972 SCMR 207.
(2) Ahrar Muhammad and others v. The State reported in PLD 1974 Supreme Court 224.
(3) Ashok v. The State reported in 1997 SCMR 436 and the case of Gul Hasan Panhyar v. The State reported in the same book at Page 390.
(4) Muhammad Aslam v. The State reported in 1999 SCMR 2147.
(5) Sardar Amjad Ali Khan v. The State reported in 2009 SCMR 425.
(6) Mumtaz and 13 others v. The State reported in 1992 PCr.LJ 2325.
(7) Abdul Hameed and 2 others v. The State reported in 2003 MLD 19.
(8) Moula Bux and others v. The State reported in 2004 YLR 2765.
(9) Gul Beg alias Nangi v. The State reported in 2005 PCr.LJ 147.
(10) Arab alias Katoo v. The State reported in 2005 PCr.LJ 555.
(11) Ghulam Abbas alias Abbasi and others v. The State reported in PLD 2005 Karachi 255.
10. The learned Deputy Prosecutor-General, opposed the grant of bail on the ground that the prosecution has not caused any delay in conclusion of the trial; that the witnesses examined have fully implicated the present applicant in the commission of offence.
11. I have heard the learned counsel for the parties and with their kind assistance perused the material available on the file including the case diaries of the case filed by the learned counsel for the appellant. Admittedly, the application on merits filed by the applicant was rejected by this Court and the direction was given to the learned trial Court to conclude the trial. The record reveals that the applicant was arrested on 24-5-2005. On 6-2-2006, the learned trial Court had framed the charge against the accused and thereafter only two witnesses i.e, P.W.1. Waqar Hussain Memon and P.W.2. Medical Officer Dr. Abdul Haleem, out of eight witnesses, were examined. The case diaries filed by the learned counsel show that on 27-2-2006 no P.W. Was present and the summons for their attendance was issued. On the said date, the complainant appeared late and filed application. On 16-3-2006 again the complainant filed the application and the trial Court while adjourning the case ordered for issuance of summons to the remaining P.Ws. On 6-4-2006 no P.W.
12. Was present and the summons was ordered. On 4-5-2006 the complainant filed application for adjournment and while adjourning the case the summons for remaining witnesses was ordered.
13. On 29-5-2006 no P.W. Was present. On 29-6-2006 P.Ws. Ahmed Khan, SIP Abdullah and Raboo were served with summons, but were called absent, therefore, the B.Ws. Were ordered against them and summons to the remaining witnesses. On 27-7-2006 the case was adjourned on the application of complainant. On 14-9-2006 no P.W. Was present. On 30-9-2006 no P.W. Was present. On 18-10- 2006 no P.W. Was present the learned Presiding Officer was on Ex-Pakistan Leave, on 13-11-2006 no P.W. Was present. On 9-12-2006. The case was adjourned on the application of complainant, on 11- 1-2007 the complainant was bound down to produce the witnesses. On 12-2-2007 Presiding Judge was on Ex-Pakistan leave on 8-3-2007 the P.Ws. Raboo and Abdullah were served with summons but called absent, therefore the B.Ws. Were ordered against them, on 5-4-2007 P.W. SIP Waqar was examined, who produced the F.I.R. On 3-5-2007 the matter was adjourned due to the absence of the learned counsel for the accused and complainant, on 31-5-2007 learned DPP was absent and the case was adjourned, on 18-6-2007 no P.W. Was present and DPP was absent, on 7-7-2007 learned Presiding Officer was on leave, the case was adjourned as the learned Presiding. Officer was on Earned Leave, on 1-8-2007 the position was same, on 3-9-2007 accused was not produced and only the P.W. Complainant was present and summons was ordered against the remaining witnesses, on 26-9-2007 the learned Presiding Officer was on earned leave, on 25-10-2007 the complainant filed application for adjournment and he was again directed to produce the witnesses, on 12-11-2007 the learned Presiding Officer was on causal leave. The N.B.Ws. Agaitist P.W.
14. Habibullah and B.W. Against Dr. Abdul Haleem were ordered, on 28-11-2007, the case was adjourned on the application of complainant, on 17-12-2007 the case was adjourned on the application of Medical Officer Dr. Abdul Haleem and the accused was not produced, on 16-1-2008 the accused was not produced, on 6-2-2008 position was same as mentioned above, on 25-2- 2008 no P.W. Was present and for their attendance the summons was ordered, on 8-3-2008 the case was adjourned as the learned Trial Judge was busy in recounting the ballot papers, on 9-4- 2008 the learned Judge was on leave, on 30-4-2008 the case was adjourned on the application of complainant for excusing the attendance of P.Ws., on 14-5-2008 only the Medical Officer was present and examined. No P.W. Was present, on 4-9-2008 the case was adjourned on the application of complainant and on 26-6-2008 the Advocates for complainant and defence were absent due to strike. No P.W. Was present. The B.Ws. And summons were ordered against the private as well as official witnesses. On enquiry, the learned Advocate for the applicant at bar submitted that till today no progress in the case is made.
15. In the case of Manzoor Khan, supra, who had filed the application of cancellation of bail granted to the respondents and while deciding the same the Honourable Apex Court has observed:-- "It is not the intention of the law to keep under-trial prisoners including those charged with capital offences without trial for inordinately long periods without any satisfactory explanation or reason to justify that action. We do not see any valid ground for interference with the discretion exercised by the learned single Judge in the High Court in this matter. If, however, on the conclusion of the enquiry, the learned Magistrate finds that it is case for commitment, the bail allowed to the respondent can be cancelled and they can be committed to custody".
16. In the case of Ahrar Muhammad and others, supra, the Honorable Apex Court allowed the bail to the appellants on the ground that inordinate delay in prosecution amounting to abuse of process of law can be treated as sufficient ground for grant of bail-majority of adjournments in case not due to any fault of defence and prosecution dragging on for more than five years whilst accused denied bail-action of prosecution and Courts, held, amounted to abuse of process of law, in the case of Sardar Amjad Ali Khan, supra, the Honourable Apex Court granted bail to the accused, who was in custody for more than four years and the trial was not concluded, in the case of Mumtaz and 13 others, supra, the accused were in custody for over 4 and 5 years and were granted bail on the ground of such inordinate and scandalous delay in the trial, in the case of Abdul Hameed, supra, this court while granting the bail on 5-7-2002 has observed that the accused were in custody since 30-10-1999 and the trial was not yet concluded, in the case of Moula Bux and another, supra, the D.B. Of this Court consisting upon My Lord Mr. Justice Wahid Bux Brohi and Muhammad Mujeebullah ,Siddiqui has granted the bail to the applicant on the ground that the trial not concluded even after the directions were given by the Court, similarly the bail was granted in the case of Aarab alias Katoo, supra, by this Court, so also in the case of Gul Beg alias Mangi, Supra, by the D.B. Of this Court consisting upon Mr. Justice Sarmad Jalal Osmany and S. Ali Aslam Jafri.
17. As observed above, this Court directed the learned trial Court to conclude the trial within a period of three months. But the trial has not yet been concluded. In the similar circumstances, the Honourable Apex Court in the case of Muhammad Aslam, supra, granted bail to the applicant and in the case of Gul Hassan Penhyar, surpa.
18. In view of the above discussion and the law relied upon by the learned counsel for the applicant, I am of the considered view that it is well settled that expeditious and fair trial was the fundamental right of the accused, criminal case must be disposed of without unnecessary delay, 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, despair, feelings of frustration and anguish apart from adding to the woes and miseries of the public. The great hardship had been caused to the accused due to inordinate delay in conclusion of the trial in peculiar circumstances of the case, keeping in view of the dictum laid down as mentioned above, I am of the considered view that the trial Court had failed to conclude the trial inspite of the directions given by this Court and the accused, who is in custody since 24-5-2005 cannot be detained in custody for indefinite period, therefore finding it a fit case for grant of bail on the ground of hardship, while allowing the application, by short order, I ordered that the applicant shall be released on bail on his furnishing two sureties in the sum of Rs,200,000 (Two lacs) each and P.R.
19. Bond of the like amount to the satisfaction of learned trial Court.
20. The above are the reasons of my short order, dated 15-7-2009.