1. ORDER MUHAMMAD TASNIM, J.---The applicant Nawab Ali seeks bail after arrest in Crime No. 21 of 2009 registered with Police Station, Dubbar, under section 302, P.P.C. The bail application moved before the trial court on behalf of the applicant was dismissed by 2nd Additional Sessions Judge, Sukkur, vide order dated 8-6-2010.
2. The brief facts, of the prosecution case, as set out in the F.I.R. Are that Abdul Khaliq, his brother Abdul Jabbar and cousin Muhammad Mobeen were working in the garden of date trees on 3-3- 2009. It was 2-00 p.m. When present applicant armed with gun along with four other nominated accused armed with gun, hatchet and lathi attacked upon the complainant party. After extending threats to the complainant party to keep quite, accused caught hold of Abdul Jabbar and applicant Nawab and co-accused Eidan and Ghani fired shots with gun upon said Abdul Jabbar, who fell down on the ground and died at the spot. Thereafter all accused caught hold of Mst.
3. Inayatan, who was busy in cutting the grass and committed her murder also by causing her fire- arm injuries. .
4. Learned counsel for the applicant has argued that present applicant along with other co-accused had filed Bail Application No.907 of 2009 before this Court. Bail was refused to the applicant this Court vide order dated 8-2-2010, whereas co-accused Ghulam Hyder was admitted to bail. He further says that after disposal of aforesaid bail application applicant is attending the trial Court and has sought no adjournment whereas P.Ws. Are not attending the Court since long and even trial Court has been compelled to issue Bailable warrants to the witnesses. He says that lastly matter was fixed on 3-8-2010, but no prosecution witnesses appeared on that day as well. Learned counsel says that it is a right of every citizen to get speedy justice, but in the present case serious prejudice and hardship has been caused to the applicant. He says that delay in trial is scandalous and prejudicial to the interest of the applicant. He says that none of the P.Ws. Have been examined by the trial Court and matter is being adjourned for procuring the attendance of P.Ws. Applicant was compelled to prefer bail application before the trial court which was rejected per order dated 8-6-2010. He further says that about more than one year and three months have passed, but trial has not yet commenced as yet. He further says that no evidence whatsoever is available with the prosecution that is why witnesses are shy in appearing in Court. He prays that keeping: in, view the hardship and delay in trial which is violative of constitutional provisions, present applicant be admitted to bail. In support of his contentions, learned counsel has placed reliance on the cases of Ghulam Abbas alias Abasi and others v. The State (PLD 2005 Kar. 255), Gul Beg alias Nangi v. The State (2005 PCr.LJ 147) and Aarah alias Kato v. The State (2005 PCr.LJ 555).
5. As against above, learned A.P.G has vehemently opposed the grant of bail to the applicant and he says that a person has died in this case and case falls under prohibitory clause of section 497 Cr.P.C., hence applicant is not entitled to bail. He says that since the applicant has remained in jail for 15 months, he has not completed two years of time, hence judgments referred to by learned counsel for the applicant will not be applicable. Learned APG in support of his aforesaid contentions has placed reliance on the cases of Ali Muhammad and another v. The State (2009 PCr.LJ 521) and Muhammad Nawaz alias Deno and another v. The State 2003 M LD 79.
6. I have heard learned counsel for the parties and have gone through the record and case law cited at the bar.
7. From the perusal of diary sheets of learned trial Court, filed by learned counsel for the applicant along with this bail application, it appears that as many as 12 dates of hearing had taken place after rejection of bail application of the applicant by this Court, but at most of dates, prosecution witnesses were not in attendance and no adjournment whatsoever has been taken by the applicant. From the perusal of record, I feel that delay in trial is shocking and scandalous which entitles the applicant for grant of bail.
8. In the case of Ghulam Abbas (supra) wherein the learned Division Bench of this Court while dealing with the provisions of section 497, Cr.P.C. Dealing with the delay in trial has observed as under:-- "Object of criminal trial was to make accused face trial and not to punish as under-trial prisoner.
9. Expeditions and fair trial was right of accused. Prosecution could not be absolved or given any latitude on account of inability to produce accused from jail for lack of resources. State was bound to make arrangements for providing logistics to prosecution to ensure production of accused in Court on each and every date. Where accused was able to show that unexplained delay was on the part of prosecution to proceed with the case; where prosecution/ complainant was causing impediment in early conclusion of trial; where prosecution was tardy and slew in producing evidence/ witness; where prosecution took undue adjournments, where co-accused were absconding and there was no possibility to commence trial in their absence and proceedings under sections 87 and 88, Cr.P.C. Were taking unreasonably long lime; where trial Court was lying vacant for sufficiently long time, where proceedings were stayed at the instance of co-accused, complainant or prosecution and A there was no possibility of vacation of stay at an early date; where unconscionable delay was being taken in cases under special statute which required day to day trial and where some of the facts were contributing to delay in prosecution of case, bail could be granted to the accused on the ground of delay. Delay and nature of delay in each case however, was to be assessed and examined on its on merits. Where Court would come to a conclusion that delay was unexplained repulsive and unconscionable and accused or any person on his behalf had not contributed in causing delay, the Court could enlarge accused on bail in cases where bail could be extended on the ground of delay but surety amount should be substantial to ensure appearance of accused to face trial."
10. In case of Gul Beg, alias Nangi (supra), another learned Division Bench of this Court while dealing with the provisions of section 497, Cr.P.C. And delay in trial has observed that delay per .Se, though was no ground for grant of bail, but in cases where it appeared to be shocking and scandalous, as in the present case the Court could exercise its discretion in favour of accused.
11. Similarly, in case of Aarab alias Katoo (supra) wherein the learned Single Judge of this Court while dealing with the point in the issue has taken into consideration number of decision's rendered by the superior Courts has concluded as under:-- "In the case of Muhammad Aslam v The State 1998 SC AIR 2147 the directions of High Court were not implemented and bail was granted by the Honourable Supreme Court. Similarly, in the case of Behrann 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 Shabir v. State 2003 PCr.LJ 1521 where the period of detention was two years eleven months and twenty-four days."
12. With regard to the judgment reported in 2003 M LD 79 cited by learned APG, is distinguishable on facts as in the reported judgment High Court while disposing of the bail application granted two months' time for conclusion of trial, but trial was not concluded within two months' time, hence applicant in that case applied to High Court for grant of bail on the ground that trial has not been concluded in the time fixed by High Court. Learned Division Bench came to the conclusion that non compliance of order of High Court for concluding the trial cannot be made basis for grant of bail.
13. I respectfully follow the dictum laid down by the superior Courts particularly in the case of Ghulam Abbass (supra) referred to above and admit the present applicant to bail, subject to his furnishing solvent surety in the sum of Rs.500,000 (Rupees five lass only) and P.R bond in the like amount to the qualification of the learned trial Court.
14. Before parting with this order I deem it proper to issue a direction to the trial Court to conclude the trial at the earliest discourage the adjournment on the part of the parties and preferably conclude the trial within a period of three months from the receipt of this order and pass judgment. If for any good reason, the trial could not be concluded in the aforesaid period, the trial Court is directed to submit a detail report from the date of the submission of challan till date of making reference and explain reasons for not disposing of the case.
15. In view of above. Bail application is disposed of accordingly.