1. ' MAQBOOL AHMED AWAN, J.--Granted subject to all just exceptions.
3. The applicant seeks bail in Crime No,18 of 2007 of Police Station Tando Jam for offence under sections 302, 324, 384, 147, 148, 149,P.P.C.
2. ' The facts of the prosecution case are that Complainant Muhammad Arif lodged F.I.R. At the above Police Station after receipt of information that his nephew Majid student of Agricultural University, Tando Jam suffered severe injuries and was lying unconscious at Civil Hospital along with another injured student Waqas Rajput. That on refusal to meet the demand of "Bhatta", they were severely beaten by a group of students together with other boys. The applicant accompanied and participated in that attack armed with an iron rod. Majid was operated from 6-00 p.m. To 10-00 p.m. He did not regain conscious and succumbed to the injuries. The complainant attended the deceased in hospital and lodged F.I.R. Immediately thereafter, after the death of Majid.
3. ' The police took up the investigation, after completing the same, submitted the challan in the Court of Civil Judge and Judicial Magistrate No,9, Hyderabad on 8-3-2007, showing the applicant arrested and remaining as absconder, who sent up the same to the Court of learned Sessions Judge, Hyderabad, from where the same was received by learned IVth Additional Sessions Judge, Hyderabad for trial.
4. ' In the case in hand, the applicant/ accused was arrested on 21-2-2007.
5. ' The learned counsel appearing on behalf of the applicant/accused argued that applicant is in custody since the date of his arrest; that after the dismissal of bail by the learned trial Court, the applicant applied for bail and while rejecting the same, this Court vide order dated 6-2-2008, "directed the learned trial Court to record the evidence of all the material witnesses of the prosecution, preferably within a period "of six months after receipt of the order whereafter the applicant/accused will be at liberty to repeat such application, if so desired"; that on 5-8-2008, the charge was framed; that applicant himself has not caused any delay in conclusion of the trial; that the Court where the trial is pending is lying vacant; that co-accused Mukhtar Ali has been acquitted by the learned trial, Court with the consent of the complainant; that on delay in trial and hardship, he prays for grant of bail. In support of his contentions, he has placed reliance upon the cases reported as (1) 1999 SCMR 2147, (2) PLD 2009 SC 58, (3) 2007 SCMR 1254, (4) PLD 2005 Kar. D.B.
6. 255, (5) 2009 MLD Karachi 103, (6) 2004- YLR D.B. Karachi 843 -(7) 2009 YLR D.B. Karachi 73, (8) 2008 PCr.LJ Kar. 449, (9) 2006 MLD Karachi 1846, (10) 2003 MLD Karachi 19 and (11) 2008 YLR 864.
7. ' The learned counsel for complainant while opposing the bail, argued that bail has been declined to applicant on merits by this Court as well as by the Honourable Apex Court; that no delay in conclusion of the trial caused by complainant who remained present on dates of hearing. But the- case has not been proceeded for one or other reasons; that even non-compliance of the order passed by this Court does not entitle the applicant for grant of bail; that applicant has failed to make out a case for bail on the ground of hardship. He placed reliance upon the case reported in 2003 MLD 79.
8. The learned State Counsel endorsed the arguments advanced by learned counsel for the complainant.
9. ' Heard learned counsel for the parties and minutely perused the entire material available on record.
10. The record perused with the kind assistance of learned Advocates for the A parties which shows that applicant is in custody since 21-2-2007. The applicant along with absconding co-accused and acquitted accused was challaned on 8-3-2007, on receipt of the same, the learned trial Court on 6-6-2007 issued NBWs against the absconding accused. Co-accused Mukhtiar has been shown present in Court on interim bail. On 5-9-2007 the case was transferred to the Court of learned Additional Sessions Judge (III), Hyderabad. Before framing of the charge on dates i,e, 1-3-2008, 22- 3-2008, 15-4-2008, 7-5-2008, 27-5-2008, 18-6-2008 and 9-7-2008, the complainant was shown to be present. Under the orders of this Court, on 15-4-2008, the case of absconding accused was bifurcated and was adjourned to 7-5-2008 for framing of charge. On 18-6-2008 complainant filed affidavit in support of the application moved by co-accused Mukhtiar who was acquitted under section 265-K, Cr.P.C. By the learned trial Court. On 5-8-2008 the charge was framed. On 22-9- 2008 the P.Ws. Against the P.Ws. Were ordered. As per learned counsel no progress in the case is made as the Court where the case is pending is lying vacant.
11. ' I have given due consideration to the arguments advanced by learned counsel for the respective parties and I am of the considered view that the prosecution has failed to comply with the direction given by this Court and it is well settled law that one should not be detained in custody for indefinite period. In the case in hand, the applicant/accused is in custody since 21-2-2007 and the trial has not yet been concluded. Furthermore, the co-accused Mukhtiar having identical role, has been acquitted by the learned trial Court on the basis of affidavit filed by the complainant.
12. ' Keeping in view what discussed above, I am of the considered view that applicant has made out a case for grant of bail on the ground of hardship. The case-law relied upon by learned counsel for applicant/ accused are applicable to the case in hand. Accordingly, I allow this application and grant bail to the applicant/ accused in the sum of Rs.200,000 (Rupees two lac) and P.R. Bond in the like amount to the satisfaction of the learned trial Court.