ORDER BHAJANDAS TEJWANI, J.---This bail application has been moved on behalf of applicant Liaquat Ali Channa who is facing trial under section 302/34, P.P.C. Before the Court of learned Additional Sessions Judge, Gambat in Sessions Case No.71 of 2007 arising out from Crime No.4 of 2007 of Police Station Gambat.
2. Brief facts as stated in the F.I.R. Lodged on 13-1-2007 by complainant Makhdoom Shafique Ahmed are that there was dispute on the street between the present applicant and complainant party as the present applicants side was going to close the street, on such dispute the present applicant duly armed with T.T. Pistol with other three unknown persons armed with Kalashankove came on two motorcycles. The present applicant is alleged to have fired from straight directions on the deceased Makhdoom Rafique Hashmi who fell down on the earth while the persons armed with Kalashankove were also standing by pointing their arms on prosecution witnesses.
3. After usual investigation, the police submitted charge sheet against the present applicant Khadim Hussain, Muhammad. Akhtar and one unknown accused.
4. It is contended by the learned counsel for the applicant that as per allegations the applicant Liaquat Ali fired in the straight direction on the deceased which hit in his neck but the Medico Legal opinion discloses that the wound of entry was on neck while wound of entry on the back of right shoulder, therefore, according to the learned counsel the fire was not from straight direction but it was on upper side which will lead to a presumption that prosecution witnesses have not seen the incident.
5. The learned counsel further submitted that the applicant is in jail custody since 3-3/4 years and the trial has not concluded and not a single witness has been examined. He has placed case diaries showing that the delay has not occasioned due to any fault or act of the applicant. In support of his contentions, he has relied on case of Peeral v. The State reported in 2005 YLR 358 in which this Court considered delay of about three years a ground for bail and allowed the applicant to be released on bail on the ground of hardship.
6. The learned counsel for applicant lastly argued that the matter was reinvestigated on the application of present applicant and on the directives of this Court, the police officials who submitted their report dated 1-11-2008 in which they concluded in clear terms that the actual culprits who committed the crime were Khadim Hussain, Muhammad Akhtar and Ali Nawaz Phulpoto but not the present applicant, who is only guilty of provocation and providing lead to said actual culprits.
According to learned counsel the case of applicant in view of reinvestigation conducted on the directives of this Court requires further probe that whether the present applicant was directly involved in committing the murder of deceased or co-accused Khadim Hussain and others are responsible for causing the murder of present applicant and that the second investigation can not be lost sight. In support of his contention, the learned counsel has relied on the case of Syed Ghulam Mustafa v. The State reported in 2007 PCr.LJ 139 (D.B.).
7. Mr. Shyam Lal appearing for the State has opposed the grant of bail on the ground that this is a daylight murder, the recovered pistO1 was sent to the ballistic expert and the opinion of ballistic expert is in positive. The name of the applicant with specific role in promptly lodged F.I.R. Is sufficient to prima facie constitute that the applicant has committed the crime of murder.
8. I have considered the arguments, advanced by the learned counsel for applicant and prosecutor and also have gone through the record available and case law cited at the bar.
9. The contention of learned counsel that there is conflict between ocular and medico legal opinion in the matter with regard to the position of person firing on the deceased require deeper appreciation of evidence which is not permissible to be made at the bail stage.
10. Reverting to second ground of hardship raised by the learned counsel, it may be observed that applicant is in jail custody since 3-3/4 years. He was arrested on 15-1-2007; the amended charge was framed in the matter on 19-8-2008 but thereafter case is being adjourned on one or the other reason and the last case diaries of about five dates show that learned Presiding Officer is on leave and not a single witness has examined in the matter. The fair and expeditious trial is right of accused which has been recognized as constitutional right and in case the expeditious trial or adjudication is not possible then the applicant's case for his release on the bail can be considered.
The case of Peeral v. The State (Supra) supports the contention of learned counsel for the applicant as in the referred case the bail plea was considered on the ground of delay of three years in conclusion of trial and the accused was extended the concession of bail, therefore the applicant is entitled to be released on bail on the ground of delay.
11. It is also admitted position that the matter was again investigated by high Ranking police officials on the directives of this Court on an application moved by the present applicant and during such investigation by high ranking police officials the present applicant was not found to be a main culprit of the incident and direct role of causing murder of deceased was alleged against co-accused Khadim Hussain and others and this investigation conducted by high ranking police officials. No doubt, the Court is not bound by any report of first or second investigation but it would not mean that reports were not to be considered at all therefore in view of such position the case of present applicant will require further probe and inquiry entitling him for the concession of bail at- least.
12. Accordingly, this bail plea is accepted, the applicant shall be released on his furnishing surety in sum of Rs.2,00,000 (Rupees Two Hundred thousand Only) and P.R. Bond in the like amount to the satisfaction of the trial Court.
14. This criminal bail application is disposed of.