1. ' MUHAMMAD TASNIM, J.---The present applicant is booked in Crime No,16 of 2006 of Police Station, Pano Akil (Cantt:) for offences punishable under sections 302, 457, 511 and 337-H(ii), P.P.C.
2. ' The prosecution story as set out in the F.I.R. Is as under:-- "It is reported that I own the cattle viz. Goats. At night time, I and my brother Shaman aged about 38 years, used to tether the goats in the courtyard in front of our house and used to sleep. On the night of incident, as per routine, I and my brother Shaman tethered the goats in the courtyard of the house, closed the entrance door of house and went to sleep. The electric bulb inside the house, as well as outside were on. At 2-00 a.m. At night, there was a sound, on which I and my brother Shaman woke-up and in the light of electric bulbs saw that the wall of the western side was burgled. We opened the door came outside and in the light of electric bulbs saw and identified accused (1) Rabban son of Mehrab Bullo with K.K, (2) Laloo .Son of Makoro Bullo with Gun, (3)
3. Samano son of Hasul Bullo, with Gun, (4) Arso alias Arsallah son of Malhar Bullo with Pistol, (5)
4. Mohbat son of Mehrab Bullo with Gun and (6) one unidentified person with Scissors for cutting the locks who were standing there. My brother challenged and tried to apprehend the accused with Scissor, on which accused Rabban with Kalashnikov and Laloo with Gun who were standing nearby fired straight shots with intention to commit murder upon my brother, with the purpose of rescuing the unknown accused from the clutches of my brother, the fire shot by Shaman whereas the shot fired by accused Laloo with gun hit unknown accused which both the persons fell down while raising cries. The other accused persons also fired shots. I raised cries, on the cries and firearm reports, my relatives from neighbourhood namely Rehmat Khan son of Muhammad Saleh and Muhib Ali son of Niaz Ahmed Khalidi came running there, who too properly saw and identified the accused persons in the light of electric bulbs. Thereafter the accused ran away towards northern side while firing in the air. Then I and above P.Ws. Saw that Shaman had sustained a firearm injury on the elbow of right arm, which was through and through and a firearm injury on-the right side of chest and below nipple which was through and through, he was bleeding and had expired. We saw that unknown accused, who had sustained firearm injuries on right side of heart, cheek and near parietal region, was bleeding from injuries and unconscious. He was seen from the back and a Scissors for cutting locks was tried with rope on his backside. Thereafter, I left the dead body and injured in the custody of above P.Ws. At the vardhat and himself went to lodge the F.I.R. That above accused with common object with intention to commit theft had burgled the wall and on the sound when we woke up and my brother tried to apprehend unknown accused, whereupon accused Rabban with Kalashnikov and accused Laloo with Gun with intention to commit murder, had fired upon my brother Shaman and unknown accused, thereby murdering him. I am complainant, pray for justice."
5. ' In support of the present bail application, the learned counsel for the applicant has submitted that there are as many as six accused persons nominated in the F.I.R. Except one all were armed with Kalashnikovs, Guns and Pistols respectively. It is case of prosecution that due to firearm injuries one Muhammad Shaman died on the spot. Learned counsel for the applicant has stated that no specific role has been assigned to the present applicant in the commission of the offence. He further says that there is inconsistency in the ocular and medical evidence. He further says that P.
6. W Muhammad Khan had recorded his statement under section 164, Cr.P.C. And there is contradiction in the version of the F.I.R. And the statement to made by the P.W. Muhammad Khan.
7. He further says that about 4 years and 3 months have been passed and the applicant is behind the bars and only charge has been framed in this case only on 13-4-2009 and till date no prosecution witness has been examined.
8. ' Learned A.P.G on the other hand says that in the present case an innocent person has lost his life and the case falls within prohibitory clause. He says that bail may not be granted to the present applicant.
9. I have heard the learned counsel for the parties and have gone through the record. Since no specific role has been assigned to the present applicant and there is inconsistency in the ocular and medical evidence, so much so there is also contradiction in the statement under section 164, Cr.P.C. Of P.W. Muhammad Khan. The co-accused Samad and Arsallah have already been admitted to bail by this Court. In this view of the matter similar relief is to be granted to the present applicant and his case in my view requires further enquiry in terms of subsection (2) of section 497, Cr.P.C.
10. ' Even otherwise, it is a case of hardship and about 4 years have been passed but the trial has not substantially proceeded with.
11. ' 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 an 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."
12. ' 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.LJ 1521 where the period of detention was two years eleven months and twenty-four days."
13. ' 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 favour of an accused."
14. ' Following the rule in the above cited judgments I admit the present applicant to bail subject to his furnishing solvent surety in the sum of Rs,2,00,000 (Two Lac) and P.R. Bond in the like amount to the satisfaction of trial Court.