1. ' AMER RAZA NAQVI, J.--- Through this application, applicant has sought bail in Crime No,57/2003 Police Station, Daharki, District Ghotki, for an offence punishable under section 394, P.P.C., as at the time of incident deceased Raja son of Kanero Manghwar was injured after receiving straight fire of pistol. In the F.I.R. It has been alleged that complainant was stopped by the accused party who asked him to leave his motorcycle, on which deceased Raja resisted and in the meanwhile accused (present applicant) made straight fire of pistol. The name of the applicant is not mentioned in the F.I.R. And he was subsequently arrested on the basis of identification parade held in presence of Civil Judge and Judicial Magistrate. The injured subsequently died and as such section 302, P.P.C. Was inserted in the challan-sheet.
2. ' Learned counsel for the applicant/accused argued that he has moved the bail application only on the ground of hardship, He has submitted that charge was framed on 9-6-2004 and there was no P. Ws. Since 22-6-2004 till 10-5-2005. He further submitted that on 13-12-2006 the learned trial Court has observed that the charge has not correctly been framed and need to be reframed. It is not clear from the subsequently diaries whether the charge was reframed or not, however, matter was being fixed from time to time for evidence since 5-9-2007: He further submitted that there is no fault on the part of the applicant/accused in delaying the trial and the reasons for such delay were that mostly the applicant/accused was not produced from the custody, the Court was lying vacant or the lawyers were on strike. He has relied upon a case-law reported in 2005 PCr.LJ 715 of our own High Court. In such case the accused was in custody for 4 years 9 months and 9 days and in the arguments learned counsel for the applicant Mr. Muhammad Ayaz Soomro, Advocate had also submitted that the age of the applicant was shown as 12 years 9 months and 15 days and a copy of School Leaving Certificate was annexed along with his application. Mr. Baloch pointed out that in said case the evidence of complainant and two eye-witnesses was recorded and case could not be concluded, whereas in present case it is not clear whether charge has been framed or not and the applicant is in custody since 12-3-2004, therefore, on the ground of hardship he is entitled for the concession of bail.
3. ' On the other hand learned counsel for the complainant Mr. Arjandas Ladhani contended that on 25 dates of hearing, the accused was not produced from jail, therefore, case could not be proceeded, therefore, such delay was not on the part of the applicant. He also pointed out that on 28-5-2005, 11-6-2005, 9-5-2006, 26-2-2006, 13-12-2006, 22-2-2007 and 8-10-2007 adjournments were sought by the applicant/accused. He further states that on 11 times at least P.Ws. Were present and case could not be proceeded. He has submitted that P.Ws. Are invariably present in Court but their presence is mentioned only at 11 times. He has further submitted that accused was correctly pointed out by the witnesses before the Magistrate in identification parade and specific role has been assigned to the applicant/accused for commission of the offence, which is heinous one and he is not entitled for concession of bail. He further submits that accused was arrested with crime weapon and motorcycle of the deceased.
4. ' In reply to such argument Mr. Baloch states that crime weapon has not been recovered from the applicant/accused and no description of accused was given in the F.I.R. And he was arrested only on the basis of pointation before Magistrate and in absence of descriptions in the F.I.R.
5. Identification of the accused is of no value.
6. ' Learned counsel for the complainant states that there was no enmity in between the parties therefore, there was no reason for complainant to falsely implicate the applicant/accused or anyone else. He has relied upon the case-law reported in 2005 YLR 139, 1998 SCM R 897 a full Bench judgment of Honourable Supreme Court; 2004 SCM R 1160, 2005 SCM R 756 and 2007 SCM R 813.
7. ' Mr. Agha Athar Hussain Pathan, learned Assistant Advocate-General has adopted the arguments of learned counsel for the complainant.
8. I have heard all the learned counsel for the parties ,and perused the record with their able assistance. No doubt that name of the applicant/accused was not mentioned in the F.I.R. But he has been correctly picked-up in the identification parade. Admissibly, there is no enmity between the parties and complainant had no reason to implicate the present applicant/accused in the commission of the offence. This seems to be a reason that name of the applicant/accused was not mentioned in the F.I.R. But specific role was assigned to the present applicant/accused who had made direct shot on the injured and this person was subsequently picked-up in the identification parade as the person who fired on the injured. The offence is a heinous one and in my humble view despite the arguments of the Mr. Baloch, learned counsel for the applicant who has very ably presented the case of his client he could not make out a ground for concession of bail.
9. ' I have gone through the case-law cited by the parties. In the case relied upon by Mr. Balochi learned counsel for the applicant a certificate was annexed with the bail application and age of the applicant/accused was shown as 12 years 9 months and 15 days. Although despite observations in the last para. Of the said judgment "that applicant has been able to make out a case kir bail on the ground of hardship, as according to the learned counsel he has remained in custody for 4 years 9 months and 9 days" but in bail matters always since there is no hard and fast rule laid down by the superior Courts, therefore, while deciding the matter of bail Honourable Judges keep in mind a number of factors reflected on record. It appears that age of the applicant/accused in such case could be a reason for grant of bail in that case.
10. ' In the case-law reported 1998 SCM R 897 relied upon by the learned counsel for the complainant despite availability of third proviso to section 497, Cr.P.C. At the time of judgment bail was declined to the applicant by a full Bench of the Honourable Supreme Court keeping in view of adjournments sought by the applicant on certain dates and also due to the nature of crime alleged against the applicant. In 2004 YLR 1339, it has been observed that if offence alleged against the applicant falls within the prohibitory clause of section 497(1) Cr.P.C. And the offence is heinous, one, petitioner.
11. Was not found entitled to concession of bail. Likewise in other cases referred by learned, counsel for the complainant in view of the nature of the crime, the bail was declined to the applicant. In the present case there are reasonable grounds to believe that accused has committed the offence and in view of the nature of the offence and facts and circumstances as discussed above applicant/accused has failed to make out a case for grant of concession of bail and accordingly his bail application is dismissed.
12. ' In view of above facts and circumstances, the case could not be proceeded on one or the other reason and it is not clear that whether fresh charge has been framed or not. As has been discussed above Mr. Baloch learned counsel for the applicant/accused pointed out a case diary of 13-12-2006 in which the learned trial Court has observed that charge needs to be reframed but subsequent diaries do not make it clear whether the charge was reframed or not. By consent of the parties, I, therefore, direct the learned Sessions Judge, Ghotki to call the R&Ps. Of S.C. No,92 of 2004 State v. Rasheed Ahmad and other under section 302, P.P.C. From the file of learned IVth Additional Sessions Judge, Mirpur Mathelo and try the case himself or transfer it to some Additional Sessions Judge who is available. The material witnesses should be examined within three months and thereafter the applicant would be at liberty to move fresh application for bail in the trial Court, which will be decided on merits within 15 days of notice on such, bail application.
13. ' Criminal Bail Application No,S-74 of 2009 is disposed of.