1. MUHAMMAD TASNIM, J.---The present applicant is booked in Crime No.104 of 2007 of Police Station Bhirya City for offences punishable under sections 302, 34, P.P.C.
2. The prosecution story as set out in the F.I.R. Is as under:-- "Complaint is that I along with my brother namely Muhammad Ummar Marri aged about 40 years, cultivate our lands. Last night in our village an electric wire was stolen which belonged to Punhoon Marri, upon which my nephew Gulzar son of Umar Marri had a quarrel with son of Punhoo, whereupon their relatives Hajjan Marri and others were annoyed and they would not let us go free.
3. Today in the morning I along with my brother Muhammad Umar Marri and uncle Moula Bux son of Soomar Khan Marri and maternal-uncle Hashim son of Jeeando Marri were on our way towards our lands to get the grass for our cattle and at about 9-00 hours we reached at Qaimuddin Lakho's wheat crop which is adjacent to our village, where each one namely Rawat son of Gullan Marri armed with D.B.B.L Gun, (2) Ghulam son of Gullan Marri armed with Mouser, (3) Muhammad Malook son of Gul Marri laced with Hockey stick, (4) Hajjan son of Gulan Marri, (5) Ellahi Bux son of Muhammad Ramzan Marri, (6) Bangul Khan son of Ghulam Hussain Marri, all resident of Village Naseer Khan Marri, Taluka Bhirya, all armed with hatchets, (7) Allah Warrayo son of Umar Bhutto resident of Bella Wah armed with hatchet came in front and Muhammad Malook Marri instigated all accused to kill Muhammad Malook Marri, upon saying so accused Hajjan Marri, (2), Ellahi Bux Marri, (3) Bangul Khan Marri, (4) Allah Warrayo Bhutto abused and hit my brother Muhammad Umar at head and arm with hatchets, Rawat Marri and Ghulam Marri pointed their guns, due to receipt of hatchet-injuries my brother Muhammad Umar fell down on the ground, while crying we entreated the accused persons to get rid of them, thereafter all the accused persons went away by abusing along with their arms and hatchets. We saw that my brother Muhammad Umar had hatchet injuries on his head and arms was bleeding and was loosing, subsequently he died.
4. Furthermore, .After making arrangement for the conveyance with the help of the above witnesses took my dead brother Muhammad Umar Marri and leaving his dead body there in the Hospital, now appear and report that upon Punhoo Marri's electric wire quarrel, on the instigation 9f accused Muhammad Malook Marri the above named all accused altogether made plan and with hatchets caused injuries and killed my brother Muhammad Umar Marri. I am complainant pray for redressal."
5. In support of his bail application, the learned counsel for the applicant has submitted that as per contents of F.I.R. There were as many as seven accused persons nominated in the F.I.R. And four of them were armed with hatchets and all the four accused persons have caused injuries to the deceased. He further says that one co-accused Hajjan Marri has already been admitted to bail by this Court and the other co-accused Bangul has been shown in Column No.2 of the challan-sheet by the police under section 169, Cr.P.C. He further says that though in the F.I. R, the present applicant has been shown to be armed with hatchet, whereas in the challan the recovery of Iron Rod has been shown from the present applicant. Learned counsel further says that following the rule of consistency, the present applicant may also be admitted to bail. He further says that this is a case of serious hardship because 3 years and 3 months have elapsed but the trial has not been substantially proceeded with and only charge has been framed. He further says that no doubt co- accused Hajjan Marri was granted bail in terms of sub-clause (6) of section 10 of Juvenile Justice System Ordinance, 2000. Learned counsel for the applicant says that no doubt the confessional statement has been recorded of the present applicant but there is inconsistency and that confessional statement of applicant is contradictory to the contents of F.I.R.
6. In support of his contentions, the learned counsel has relied upon the case of Mehar Ali v. The State 2008 PCr.LJ 449 and case of Shabbir Ahmed and another v. The State 2003 PCr.LJ 1521.
7. On the other hand, learned Additional Prosecutor-General has vehemently opposed the grant of bail. He says that the applicant may not be granted bail, because he is connected with the commission of offence. He further says that specific role has been assigned to the present applicant and medical evidence fully supports the version in F.I.R. He says that the case falls within prohibitory clause and the applicant is not entitled for the concession of bail.
8. I have heard the learned counsel for the parties and examined the record. From the perusal of the record, it appears that in F.I.R. Four persons were nominated in the F.I.R. To be armed with hatchets and it is further stated that all the four persons had caused injuries. Out of four one accused person has been granted bail and other has been let-off by the police, third accused is the present applicant, who no doubt has recorded his statement under section 164, Cr.P.C., but the story narrated by him in the statement under section 164, Cr.P.C. Is quite different than the version in the F.I.R. Even otherwise it is quite clear that 3 years and 3 months have passed but the trial has not proceeded till date. It will be unfair to keep the applicant behind the bars for an indefinite period.
9. The expeditious trial of case is the right of every citizen.
10. In case of Abdul Hameed v. State 2003 M LD 19 a learned Single Judge of this court while dealing with delay in trial of a accused person has observed as under:- "Expeditious and fair trial is a fundamental right of an accused person. The intention of law is that a criminal case must be disposed of without unnecessary delay. It will not be difficult to comprehend that 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 and despair and feelings of frustration and anguish apart from adding to their woes and miseries."
11. In another case of Aarab alias Katoo v. State 2005 PCr.LJ 555 another Single Judge of this court while dealing with delay in criminal trial has observed as under:-- "In the case of Muhammad Aslam v. The State 1998 SCMR 2147, the directions of High Court were not implemented and bail was granted by the honourable Supreme Court. Similarly, in the case of Behram v. The State 2003 PCr.LJ 73 there was no compliance of the directions issued two years back therefore, relying on Manzoor Watoo's case reported in 2000 SCM R 107 bail was allowed. In the case of Abdul Hameed v. The State 2003 M LD 19, this Court took note of the detention of two years and eight months and allowed concession of bail since the trial was making no progress. Similarly, in the case of Punhal v. The State 2004 PCr.LJ 90 considering detention without trial, concession of bail was allowed. Similarly, this Court on examining a large number of authorities on the point granted bail in Shabbir v. State 2003 PCr.L.J 1521 where the period of detention was two years eleven months and twenty-four days."
12. Lastly a learned Division Bench of this Court in the case of Gul Beg v. State 2005 PCr.LJ 147 has dealt with the delay in trial in the following words:-- "It is not disputed that the applicant is continuously in custody for last more than four years and trial has not been concluded so far. We find ourselves in respectful agreement with the view taken by the honourable Supreme Court in the above cited cases that delay per se is no ground for grant of bail but in the case where it appears to be shocking and scandalous, as in this case, the Court can exercise its discretion in fovour of an accused."
13. Following the above rule, I admit the applicant to bail, on his furnishing solvent surety in the sum of Rs. 2,00,000 (Two lac) and on executing the persona bond in the like amount to the satisfaction of trial Court.