' SYED HASAN AZHAR RIZVI, J.---This bail application is filed by the applicant after rejection of his bail application vide order dated 8-10-2011 passed by the 1st Additional Sessions Judge, Karachi-South.
2. Precisely, the facts of the case as narrated in the F.I.R. Are that the brother of the complainant namely Syed Nawaz son of Muhammad. Sadiq confined in jail in Crime No,202 of 2008 under section 392/392/353/34, P.P.C. And his case wsa being proceeded in the court of IInd Additional District Judge, Karachi-West. On 22-5-2009 the complainant with his brother Muhammad Arif went to city court when the case of his brother was fixed. At about 1039 a.m. Muhammad Liaquat son of Muhammad Yousuf, (2) Muhammad Yousuf son of Bostan and (3) Jehanzeb son of Ali Zairian met the complainant in the City Court opposite to Block-E, who are brother and relatives of deceased Abid in a crime of Jekson Police Station, and started abusing them. During such quarrel Muhammad Yousuf and Jehanzeb caught hold his brother Muhammad Arif and Muhammad Liaquat fired on him with his pistol, who received bullet injuries on his chest. Suddenly police and other people came there and apprehended all the three accused persons and police recovered pistol from accused Muhammad Liaquat. The complainant along with arrested accused persons and police party went to Police Station and lodged the F.I.R.
3. Learned counsel for the applicant submits that the applicant is continuously in custody since 22- 5-2009, prosecution has only examined two witnesses to date and delay is on the part of the deceased brother Saeed Nawaz as he is not inclined to proceed with the case, making several applications on each and every date of hearing and refused to give his evidence before the trial Court. He has produced the diary sheets of the trial Court to show the delay in proceeding with the case. Learned counsel for the applicant further contended that both the other co-accused have been granted bail by the honourable Supreme Court of Pakistan, therefore, the present applicant is also entitled for the grant of bail following the rule of consistency. To support his contentions learned counsel for the applicant has relied upon the following cases:--
(1) 2011 PCr.LJ 1910 (Taj Muhammad and another v. The State).
(2) SBLR 2011 Sindh 1205 (Irfan Yaqoob v. The State).
4. On the other hand learned A.P.-G. Contended that the specific role has been assigned to the present applicant in the F.I.R., which is different from the role of the co-accused. He further contended that the accused was arrested red-handed from the premises of the City Court in presence of the witnesses and pistol was recovered from the present applicant/accused. Learned A.P.-G. Further contended that the MLO has opined that the deceased was expired due to injuries as a result of fire arm and the .30 bore pistol No,4599 recovered from the present applicant along with crime empty were sent to Forensic Lab. For examination, who opened that the crime empty was fired from the said pistol. He further contended that two years have not yet .Been completed, the delay in trial is on both sides and trial is under progress.
5. I have heard Mr. Muhammad Ashraf Kazi learned counsel for the applicant, Mr. Shahid Ahmed Shaikh learned A.P.-G. Perused the record with their assistance.
6. Preseni applicant was arrested red handed by the police at the time of incident in presence of witnesses from City Court; Karachi, pistol was recovered from him and the name of the applicant is mentioned in the F.I.R. With specific role. Perusal of diary sheets produced by the counsel for the applicant shows that either the custody of the accused was not produced by the jail A authorities or the Presiding Officer was on leave or the counsel for the applicant was called-absent and requests for adjournment were made on his behalf or the applications for transfer filed by the complainant and Bail Application of co-accused were pending before this Court and Hon'ble Supreme Court of Pakistan and police papers were not available in trial Court with the learned Prosecutor.
7. In my humble opinion the delay was not only on the prosecution side but the accused persons were also liable for the same and if the delay which was on the part of the applicant/accused is omitted from the total period, then the applicant/accused is not entitled for concession of bail on the point of statutory delay.
8. As regards the contention of learned counsel for the applicant that both the co-accused have been granted bail by the honourable Supreme Court. The role assigned to both the co-accused is absolutely different from the role of the present applicant/accused. Allegedly both the co-accused persons only caught hold of the deceased while the present applicant/ accused fired upon deceased which resulted in his death, so also weapon was also recovered from the possession of the present accused at the spot.
9. The cases cited by the learned counsel for the applicant are distinguishable from the facts and circumstances of the present case, specifically the case cited on the point of statutory delay (2011 PCr.LJ 1910) as in the said case only at one occasion the counsel for the accused was absent but in the present case on so many dates either the counsel for the applicant was called absent or requested for adjournment, therefore, in my humble opinion this case is also distinguishable.
10. The trial Court while rejecting the bail application of the applicant/accused had already directed the prosecution to secure attendance of the prosecution witnesses within two months, failing which prosecution side would be closed. Two months from passing of that order are completing on 8-12-2011. The trial Court is directed to send the current status of the case to the learned MIT-II.
11. The trial court is further directed to conclude the trial expeditiously without giving unnecessary adjournment to either party unless inevitable circumstances and send progress report to MIT-II of this court on fortnight basis.
12. Above are the reasons of short order dated 30-11-2011, whereby the instant Criminal Application was dismissed.
Bail rejected.