' ZAHID HAMID, J.---By order dated 10-9-2009, the present applicants were refused post-arrest bail in Crime No,24 of 2007 Police Station Mehrabpur under sections 302, 324, 447, 337-A (i), 337-F(i), 337-F(iii), 147, 148, 149, P.P.C. And in Sessions Case No,135 of 2007 and now they have preferred the present bail application which was presented before this Court on 4-12-2009.
1. The factual background is that both the complainant and the applicants' side lodged F.I.Rs, No,24 of 2007 and 26 of 2007 respectively at Police Station Mehrabpur against each other arising out of the same incident. The applicants claim that a civil dispute in shape of F.C. Suit No,10 of 2006 was pending in respect of landed property .Over which each side claims its rights and title. According to the applicants the complainant party came along with the area S.H.O. In order to forcibly take over the possession from them. Both the parties in their F.I.Rs, have made counter-allegations against each other as to the fight which admittedly ensued over the agricultural lands between the above rival groups as a result of which one Ashraf Kamobh and other Liaquat Ali and Ramzan received fire-arm injuries. The injured were rushed to the hospital but on the way Muhammad Ashraf succumbed to his injuries and died.
' According to the applicants they were in possession of the disputed land and this fact was also admitted by the complainant party in F.I.R. No,24 of 2007 lodged by them and the S.H.O. Had no business to come to the said lands with complainant party in order to dispossess them without waiting for the decision in the above suit. It is stated that the counter F.I.R. Was not registered at first but was subsequently registered on the directions of the court. Applicants further claim that partisan investigation was carried out as the S.H.O. Himself was involved and the matter was disposed of in Class "C" and the learned Magistrate endorsed such opinion of the I.O. Against the said order Criminal Miscellaneous Application No,113 of 2007 was filed and the same was disposed of with the observation of this court that persons on both sides were injured the injured eye- witnesses had supported the version of complainant and implicated the respondents 4 to 12; prima facie a fight had taken place between the two parties and the poor widow (referred to as the lady in F.I.R. No, 26 of 2007), was not in a position to pursue the matter in the way it ought to have been done during the investigation. It was further observed that I.O. Had no authority to assess the medical evidence at investigation stage which was to be taken into consideration at the trial stage as such the learned Magistrate had erred in disposing of the F.I.R. In "C" class while taking cognizance. Under the circumstances the impugned order dated 12-6-2007 was set aside and the trial Court was directed to forward the report under section 173, Cr.P.C. To the Court trying Crime No,24 of 2007 pursuant to section 347, Cr.P.C. To avoid conflicting judgments.
2. On the ground of counter-versions incessant trial without progress and prolonging custody the bail application was preferred before the learned Sessions Court below and it was inter alia emphasized that when one party had been granted bail, the same could not be refused to other on the plea that only one party had sustained the major loss as this plea needed to be thrashed out in trial as to who was aggressor and who was aggressed and under the facts and circumstances the benefit of bail could be extended to applicants for the case was of further enquiry.
3. The plea for grant of bail was resisted before the learned trial Court on the ground that it had been declined by the said Court twice and also by this Court and not a single fresh ground had been put forth.
4. The bail is stated to have been declined by the learned court below by order dated 25-2-2008 whereafter one of.The applicants namely Abdul Majeed filed Criminal Bail Application No,S- 706/2008 before this Court and while declining such bail plea it was observed by this court as follows:-- "Since the main ground for grant of bail as stated by learned counsel for applicant, was neither taken before the learned trial court, nor the same was taken into consideration by learned trial court. I am also of the view that as a matter or propriety, the ground of two counter-version of the case may be -properly agitated first before the learned trial court, and the learned trial court after due consideration of the same ground, shall pass the appropriate order thereon strictly according to law. In the above terms this application stands disposed of."
5. The present applicants thereafter approached the learned court below pursuant to the observations made above, but their bail plea was turned down vide order dated 9-2-2009. The applicants under the circumstances applied for bail vide Criminal Bail Application No,2005 of 2009 which too was declined vide order dated 21-1-2009. Once again recourse to fresh bail application was made in Criminal Bail Application which was refused by the learned Additional Sessions Judge Kandiaro vide order dated 10-9-2009 by making the following observations:-- "Adverting to the bail application in hand I am of the humble opinion that not a single ground has been assigned which can be treated to be a fresh one for favour of consideration. In such circumstances I see no merits in this application, which stands dismissed accordingly."
6. It would be advantageous to refer to both the F.I.Rs, Nos.24 of 2007 and 26 of 2007 lodged by the parties against each other which for convenience of reference are reproduced as follows:--
7. F.I.R. No, 24 of 2007 Date/time of occurrence 30-4-2007 at 10-45 a.m. And date/time of report 30- 4-2007 at 12-30 hours.
"Complaint is that I own 3-20 acres agricultural land S.No,181 in Deh Langijri, said land I had purchased from Abdul Qayoom Khalhoro, sale agreement was prepared and registry is to be executed; there is lemon garden planted in the said land; that the Sudheer Sakhani Chandio and Muhammad Saleh Janwary through other person have got illegally occupied the said land; that on 29-4-2007 same facts were apprised to S.H.O. Ghulam Mujtaba Almani, who assured that tomorrow he will get possession of the said land, that on 30-4-2007 in morning I, Muhammad Yousuf Kamobh, (2) Muhammad Ashraf son of Khushi Muhammad Kamboh, (3) Muhammad Ramzan Kamboh, (4) Abdul Basil Kamboh, (5) Safar alias Rashid Ali Kamboh, (6) Haji Nazir Ahmed Kamboh, and Liaquat Ali Kamboh came at Police Station Mehrabpur and met with S.H.O. Ghulam Mujtaba Almani. Who along with subordinate staff in Government Vehicle proceeded towards the disputed land and we accompanied them on motorcycles, where we reached at 10-45 in morning time in the occupied land at lemon garden in S.No,181 Deh Langirji where we saw accused Sudheer son of Malang alias Muhabat Sakhani Chandio with gun, (2) Muhammad Saleh son of Muhammad Ismaeel Janwari with gun. (3) Abdul Majeed son of Malang alias Muhabat Sakhani Chandio with country made pistol, (4) Kandhar son of Saindad Sakhani Chandio with lathi, (5) Ayub son of Yakoob Sakhani Chandio with lathies, (6) Akhtiar son of Lal Bux Sakhani Chandio with danda and 8 unidentified persons their faces were open, out of them two were with hatchets and 6 were having lathies to whom will identify on seeing again. Accused persons while seeing coming us towards them raised lalkara and said if we come forward will be murdered, on this we said that you have illegally occupied our land, on saying so accused Sudheer Sakhani made straight fire upon Muhammad Ashraf Kamboh who raised cries and fell down on ground, accused Muhammad Saleh Janwari made straight fires upon Liaquat Ali who raised cries and fell down, accused Abdul Majeed Sakhani Chandio fired upon Muhammad Ramzan who also fell down on the ground and other accused started causing lathies blows and backside of hatchets upon us, in which I and Haji Nazir Ahmed and Asghar alias Rashid Ali became injured and saw that S.H.O. Ghulam Mujtaba Almani along with police staff made his escape good in said Government vehicles. On the shots and our cries Haji Bashir Ahmed Kamboh, Muhammad Akram Kamboh Abu Bakar Kamboh came from back side, after seeing them accused ran away. Thereafter we removed the all injured to hospital with help of Muhammad Yousuf and other persons who arrived there, meanwhile in the way injured Ashraf Kamboh succumbed the injuries, thereafter we reached at Mehrabpur hospital leaving the dead body of deceased Muhammad Ashraf and other injured person in hospital went to register F.I.R.; now present and pray that due to above dispute the above aforesaid accused persons duly armed with weapons, while rioting and illegally have occupied our land with intention to commit murder made straight firing and have committed the murder of Muhammad Ashraf and have caused serious injuries to witnesses. It is complaint investigation may be conducted."
8. F.I.R. No, 26 of 2007, Date/time 30-4-2007 at 10-45 morning and date/time of report 9-5-2007 at 1600 hours.
"The applicant named above begs to submit as under:---That the applicant is law-abiding lady of Pakistan and resides within the jurisdiction of this honourable Court. That on 30-4-2007, the applicant along with her son Akhtiar Hussain were working in their land in S. No,181 situated in deh Langerji tauka (sic) Mehrabpur where lemon garden is planted when at about 10-45 hours they saw proposed accused persons namely Haji Nazir Ahmed Kamboh duly armed with Repeater, Ayoob Kamboh with pistol (country made), Akram Kamboh armed with SBBL gun, Abu Bakar armed with Repeater, Yousuf armed with Repeater, Jan Muhammad armed with pistol, Kareem armed with hatchet, Liaquat pistol, Ramzan with hatchet and other 20/30 persons duly armed with deadly weapons and will be identified if seen again come over there along with Ghulam Mujtaba Alamni S.H.O. Police Station Mehrabpur. S.H.O. Asked the applicant party that as to why they are working there, upon which the applicant party disclosed that the land is purchased by them and they are owners of the land and the lemon garden is being planted by them. S.H.O. Also called Liaquat Ali, Muhammad Ayoob and Haji Nazir and put same questions from them that on what basis the accused party is claiming to be the ownership of the land upon which the accused party after erosive reply asked the S.H.O. That they will inform him after some late. In the meantime Abdul Majeed and Dr. Saleh and Sudheer came over there on their Motorcycle who also asked the S.H.O.
That the land is concerned with the applicant party and the accused are not concerned with the land upon which the accused persons became annoyed and exchanged harsh words with the applicant party. Accused Ayoob instigated the accused persons not to leave the applicant party including S.H.O. All the accused persons attacked upon the applicant party and straightly fired upon the applicant party and S.H.O. Which hit S.H.O. And one constable who became serious injured and fallen on the ground. The S.H.O. Took the injured constable and went away for his medical treatment and medical treatment of constable. The accused Nazir Ahmed gave butt blows of the repeater to Sudheer Chandio over head, accused Kareem also gave backside of hatchet to the (sic) Sudheer while other accused also gave lathi, hatchet and butt blows to Sudheer Chandio also gave injuries to Abdul Majeed and Akhtiar Husain and Dr. Saleh. Accused Ayoob gave butt of pistol to Akhtiar Hussain on his face and due to that teeth of Akhtiar Hussain dislocated. All the applicant party fallen on the ground due to injuries. The applicant raised cries.
The accused persons while abusing the applicant party intered into the hut/Manah constracted over the land by the applicant where two motorcycles belonging to applicant party standing there.
The accused persons set the motorcycle on fire and also set fire to donkey cart presnt there and also took away one CD motor cycle belonging to the applicant and forcibly took away injured Dr. Saleh Janwari and asked the applicant party that they will not leave him and till today whereabouts of Dr. Saleh Janwari is not known whether he is alive or has been-murdered by the accused party. Akhtiar Hussain was going to lodgment of the F.I.R. That accused persons came in front of him near Police Station Mehrabpur and also gave beating to him the applicant there after went to Police Station for registration of the F.I.R. But the concerned police kept the applicant on hopes, ultimately refused hence the applicant prays as under:-- Prayer:--That this Hon'ble Court may be pleased to call opponent No,1 S.H.O. Police Station Mehrabpur and direct him to lodge/register F.I.R. Against the proposed accused persons on the verbatim of the applicant as the proposed accused persons have committed the cognizable offence."
9. The applicants have been facing trial in connection with Crime No, 24 of 2007 and the rival party is also facing trial in F.I.R./Crime No,26 of 2007 before the same learned Court below and whereas the complainant party has been extended benefit of bail, the applicant have been declined the same.
10. The applicants were arrested on 30-4-2007 and are still languishing in jail without any progress in the trial i.e, for over 3-1/2 years now.
11. I have heard the leaned counsel for the parties and learned D.P.-G.
12. This Court while deciding Criminal Bail Application No,205 of 2009 vide order, dated 21-4-2009 observed as follows:-- "Therefore in my humble view case-law cited by parties do not attract the proposition that in each and every case when there is counter version bail is to be granted without seeing the role attributed to a person who participated in the commission of offence in the present case one person has died from the side of complainant and on the other hand the injuries sustained by applicants are not of serious nature and as has been pointed out by learned A.A.-G on the basis of record available with him and also by learned trial Court in its order, dated 19-2-2009 (which has been produced by the learned counsel for the applicants). Sudhir and Abdul Majeed (present applicants) have not sustained serious injuries and more over these injuries were caused by hard and blunt substance, therefore it cannot be said that there was intention on part of the complainant party to commit murder of applicant.
' In view of above facts and circumstances in my humble view the applicants are not entitled to grant of bail at this stage and as such this bail application is dismissed. Needless to say that the observations made in this order are tentative in nature and the trial Court should not be influenced with these observations as the same are only for the Purpose of disposal of this application. It will also be open to the applicants to repeat fresh bail application before the trial Court after recording of some evidence by the trial Court. Criminal Bail Application No,205 of 2009 stands disposed of."
13. Bail application was subsequently filed before the learned lower court and it rejected the bail simply on the ground that no fresh plea had been raised after dismissal of the plea of bail ibid.
14. The learned counsel for the applicants has argued that the applicants had civil dispute on landed property with Kalhoras clan in the shape of Suit No,10 of 2007 which was filed way back on 2-3-2007 and the proceedings were pending. The applicants were enjoying peaceful possession of their agricultural land when the complainant party all of sudden with the assistance of the S.H.O.
Came on their lands and the S.H.O. Argued with the applicants on behalf of the complainant party in order to evict the applicants and others having stake; all of them trespassed over the lands and the complainant party insisting to secure forcible dispossession of the applicants and as such the complainant party and the S.H.O. Were bent upon to oust them. The learned counsel argued that the complainant party armed with weapons took law in their hands and were the aggressor and due to hot words uttered by the complainant party with the support of S.H.O. The fight broke out between the two groups as a result of which one Muhammad Ashraf died. He argued that it was primarily the duty Of the S.H.O. To have registered the F.I.R. On behalf of the applicants but he did not do so and subsequently proceedings were filed and the court passed order and as a result of which F.I.R. No,26 of 2007 under section of P.P.C. As referred to above was registered. He argued that since it was free for all fight the liability as to death could not squarely lie upon the applicants and that it could be only determined at the trial stage as to who was the aggressor and who was aggressed and the applicants on this score were also entitled to bail in addition to for the reason of grave hardship.
15. The learned counsel emphasized that two cases based on the above F.I.Rs, were pending before the same court and though at times P.Ws. (accused in other case) were present it was not divulged to.The learned Court that cases could proceed and that for this the blame would lie on the complainant party who ought to have been vigilant in prosecuting their case when they were in attendance. He drew the attention of this court to the case diaries in Crime No,24 of 2007 right from 31-5-2007 to 22-7-2010 which show that either the applicants were not produced in custody, or D.D.A. Was not present, or the complainant's Advocate was absent or the P.O. Was on leave or out of Head quarters or the complainant submitted applications for adjournment, or the P.O. Was busy in election workshop or arguments on bail application were to be heard or one accused namely Muhammad Saleh was stated to be absconder but proceedings as against the present applicants were procrastinated and further longer dates were given.
16. The learned counsel for the applicant argued that the applicants were involved in a Civil dispute on landed property with Kalhoras and the Suit No,10 of 2007 filed by the applicants and others was already pending in the Court of learned Senior Civil Judge Kandiaro against the complainant party.
I find that this suit had been filed by one of the applicant and his relatives against members of the Kalhoras family including Abdul Majeed son of Abdul Qayoom Kalhoro. The learned counsel argued that the dispute over the land with Kalhoras was subjudice when S.H.O. Led the complainant party to the said land of the applicants and trespassed over it along with the complainant party with the intention to get the said land vacated from the applicants' party as they had allegedly entered into an agreement with Kalhoras for whom physical possession was sought with the help of S.H.O. The complainant party in collusion with S.H.O. Conducted raid as a result of which the applicants had to offer resistance to the aggressor ironically supported by the police. He argued that in the circumstances the S.H.O. Also deliberately failed to register the F.I.R. On behalf of the applicants and instead of giving equal protection to them the S.H.O. Sided with the rival party. Consequently the F.I.R. Was not recorded and application under sections 22-A, 22-B, Cr.P.C. Was preferred which too was dismissed and finally recourse to proceedings before the Court was taken for recording of the F.I.R. Which was categorized to fall in class "C" by the Investigating Officer and which opinion was endorsed by the learned magistrate and that finally this court set aside the order of the said learned magistrate and the F.I.R. Was finally recorded by a naive lady from among the womenfolk of the family by the police station pitted against the applicants.
17. The learned counsel for the applicants has further argued that while case F.I.R. No, 24 of 2007 Police Station Mehrahpur was pending along, with counter-case F.I.R. No, 26 of 2007 before the same Court. The complainant party never informed to learned Court that the two cases were based on. Counter versions and since after submission of challan'and long thereafter on 22-12- 2009 it was divulged to the learned Court below which is reflected by the record as well and as such when the P. Ws. In this case (accused in the counter-case) were present the case did not proceed and finally it was decided that both the cases shall be proceeded with together. He submitted that earlier bail application preferred before this Court (not on the ground of hardship) was dismissed vide order dated 21-4-2009 and the learned trial Court was directed to record some evidence whereupon it was observed that fresh bail application be filed before the trial Court.
However, at that time the bail plea was not based on hardship and counter versions and it is yet to be appreciated whether the applicants are entitled to bail on the grounds raised herein.
18. The learned counsel for the applicant relied on diaries from 2-6-2009 to 22-12-2009 to show that the delay in trial was not attributable to the applicants The learned counsel for the applicant on query informed that he was not representing the applicants before the learned lower Court.
19. Learned counsel for the applicant has relied on case of Nawaz Khan v. The State 2010 PCr.LJ 753 to emphasize that the present case is of further inquiry. He also referred to the case of Muhammad Ayaz @ Cheens and others. v. The State (PLD 2004 Karachi 652) to plead that this Court has inherent jurisdiction to remedy the errors. He then referred to the case of Muhammad Asif v. The State (2001 PCr.LJ 895) and stressed on its basis that nothing should be allowed to obstruct or divert the ordinary course of availing the remedies. He also referred to the case of Aijaz Ali v. The State (PLD 81 Karachi 484) and the case of Wikio v. Abdullah and another (1980 PCr.LJ 602 Karachi) to contend that fresh bail application on the ground not considered would not be barred. The learned counsel for the applicant has referred to the case of Shoaib Mehmood Butt v. Iftikhar-ul- Haq and 3 others (1996 SCMR 1845) wherein the ejectment by the landlord was secured by force as a result of which three persons including one pedestrian got killed and the honourable Supreme Court granted the bail on the consideration that it would be determined during the trial as to who was the aggressor. He also referred the case of Haji Jalal Khan v. The State (2001 SCMR page 1009) and emphasized that where two interpretations were possible one favouring the accused should he taken in to consideration. He referred to the case of Behram v. The State (2003 PCr.LJ 73 Karachi) to advance the plea that fair and expeditious trial is the fundamental right of an accused which cannot be denied to him and when several years had passed and the trial had of commenced and conclusion of almost an endless trial was not difficult to be predicted then the case of hardship was made out grant of bail. He has also referred to the case of Syed Abdul Baqi Shah v. The State (1997 SCMR 32) and argued that when the delay; in trial of the case was not attributable to the accused the C.P.L.A. Was converted in to a bail application and was granted. Learned counsel for the applicant further referred to the case of Wazir Ali v. The State (PLD 2005 Karachi 201) assert his point of view that if the delay is scandalous it would make it a fit case of hardship for grant of bail.
He also relied on the case of Abdul Hameed and 2 others v. The State (2003 MLD 19) to reiterate that expeditious and fair trial was the fundamental right of the accused and the criminal case must be disposed of without unnecessary delay as 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 would create a sense of helplessness, despair feelings of frustration and anguish apart from adding to the woes and miseries of the public and since great hardship had been caused by inordinate delay in conclusion of the trial bail was allowed.
20. On the other hand the learned counsel for the complainant relied on the case of Wazir Ali v. The State (PLD 2005 Karachi 201) to stress upon that if trial is not concluded within a given time then it cannot provide the fresh ground for grant of bail. She.Also relied on the case of Muhammad Urs v.
The State (PLD 2003 Karachi 62) to emphasize that when first bail application had been turned down and no exceptional circumstances for review of such order were made the bail was to be declined. She has referred to State v. Zubair and 4 others (PLD 1986 Supreme Court 173) to emphasize that subsequent bail application to the same Court would only lie on a fresh ground, i.e, the ground which did not exist at the time when the first bail application was made and if the ground available to the accused .Was not agitated it would be deemed to have been not pressed.
She relied on Muhammad Nawaz alias Deeno and another v. The State (2003 MLD 71) to assert that where two years had not expired and the trial Court was making sincere efforts to dispose of the case expeditiously bail was refused. She referred to Naseer Muhammad Waseem and another v.
The State (1992 SCMR 501) on the point' that question of further inquiry would not arise if prima facie the accused was found to be connected with the commission of the offence and mere fact that there were cross F.I.R. Or cross cases registered by the party against each other the same would not provide aground for grant of bail. The learned counsel for complainant also referred to the case of Malik Saddique and others v. The State (1980 SCMR 203) to contend that when trial was to commence shortly it was not fair to consider the merits of the case for consideration of the plea of bail. She also referred to Muhammad Asif v. The State 2004 PCr.LJ 713, and the case of accused Dr. Abdul Jalil v. The State (2005 YLR 3213) to usher that when case was repeatedly adjourned on behalf of the accused and the delay was attributable to him the same would not make it a hardship case for consideration of bail plea.
21. The learned D.P.G. Has supported the complainant's side.
22. Having heard the learned counsel for the parties it is apparent that nothing had happened till the complainant with others including S.H.O. Trespassed over the lands admittedly in occupation of the applicants and all other events as narrated in the F.I.Rs, followed with tragic death of one of the members of the complainant party.
23. Be that as it may the learned counsel for the applicants has mainly stressed upon for grant of bail to the applicants on the ground of hardship which was not canvassed before this Court before.
He vehemently argued that throughout the proceedings before the learned trial Court no effort was made by the complainant's side to contribute to the commencement of the trial and conclude the same as it would appear from the history recorded by the diaries indicated supra. From the perusal of the same it would appear that quite belatedly it was realized by the learned Court below that the two case in Crime No,24 of 2007 and 26 of 2007 related to one and same incident. It also does not appear from the dairies that at any time the P.Ws. In Crime No,24 of 2007 had showed their preparedness to proceed with the matter. All the adjournments sought were almost hundred per cent attributed either to the non-production of accused persons, absence of D.D.A. Or lack of judicial application and absence of complainant's advocate or adjournment applications being preferred by the complainant party and for similar such reasons not attributable to the applicants' side.
24. It is noticed that the bail application which was turned down by the learned court below contained the ground of hardship and it is quoted from first paragraph at page 17 thereof thus, since the applicants are rotting in the jail since the arrest and the prosecution has miserably failed to conclude the trial hence this application on amongst other the following grounds and this plea was not adverted to in the bail rejection order which was decided with the observation in the last paragraph on the ground that no fresh reason for bail plea had been advanced. Even otherwise it was not essential to bring to the notice of the Court such facts leading to delay in concluding the trial which was even otherwise apparent from the record.
25. It seems that when no other male member was left out the widow from among the women folk of the family appeared for recording her statement for registration of F.I.R. On directions of the Court. It was therefore rightly argued that left in such circumstances the lady could not assist in investigation right from registration of the F.I.R. The applicants were arrested on 30-4-2007 and it is now more than three and half years now that they have been languishing in jail whereas the trial has hardly commenced and it is unforeseenable as to how many years it would take to conclude.
The Court diaries produced for almost the entire period reveals that the case was being adjourned without any fault of the applicants. The delay in commencement of the actual trial is more than scandalous. Such apathetic attitude attributable either to jail authorities, complainant party and others having stake excluding the applicants manifests the erosion of the criminal justice system in this case and as such needs to be checked zealously. Bail cannot be withheld as a measure of punishment when the trial is not likely to conclude in near future. Reliance is placed on the case of The State/Anti Narcotic through Director General v. Rafiq Ahmed Channa L2010 SCMR 580).
' Accordingly for all the above reasons the applicants are admitted to bail on their furnishing surety in the sum of Rs,200,000 (Rupees Two Lacs) each with execution of P.R. Bond in the like amount to the satisfaction of learned trial Court which shall hence forth expedite the proceedings and conclude the trial as soon as possible.
' The above order shall not prejudice either of the party at trial. Bail application is allowed.