' MUHAMMAD ALI MAZHAR, J.---The applicant has applied post-arrest bail in Crime No, 18 of 2010, lodged at Police Station, Faiz Ganj, under section 17 (2) Offences Against Property (Enforcement of Hudood) Ordinance, 1979.
2. The bail application was moved in the trial court, but it was dismissed vide order dated 16-6-2011.
3. Briefly, the facts of the prosecution case, are that on 9-2-2010 complainant lodged the F.I.R. That on '10-1-2010 he along with his brother Kaisar Ali, uncle Muhammad Hussain had gone to the house of his uncle Allah Ditto to give milk and while returning back, at about 7-30 p.m., they saw and identified three persons, namely, Hameed alias Jumo Khaskheli armed with KK, Qasim (applicant) armed with repeater, and Zakir Khaskheli armed with TT pistol. All the accused persons threatened the complainant party not to raise cry else they will be killed and directed them to hand over money to them. On resistance, Qasim fired upon complainant from his repeater which hit on his arm. On their cries, villagers came and accused persons fled away. The complainant was taken by P.Ws. To P.S. Faiz Ganj, from where he obtained letter for treatment to RHC, Faiz Ganj and he was referred to Nawabshah Hospital, where he was treated and after treatment, he came at Police Station Faiz Ganj and lodged the report.
4. The learned counsel for applicant argued that there is an inordinate delay of at least one month in lodging the F.I.R. Without any proper explanation. Learned counsel further argued that in the F.1.R.
It was stated that letter for medical treatment was issued but no N.C. Was recorded at Police Station which is quite astonishing. It was further averred that nothing was recovered from the present applicant though he was in police custody. He further argued that according to mashirnama not a single empty was recovered from the place of incident which also creates doubt. No injury was caused on any vital part of the body, therefore, offence does not fall within the prohibitory clause of section 497, Cr.P.C. The learned counsel further argued that applicant is behind the bars for last more than one year but his trial has not been concluded and there is no possibility in near future for concluding the case expeditiously.
5. On the contrary the learned A.P.-G. Argued that specific role has been assigned to the applicant in the F.I.R. Who was armed with Repeater and caused injury to the complainant. He further argued that according to medical certificate the injury was certified as Ghayr Jaifah Munaqqillah falling under sections 337-F(vi), P.P.C. Which is punishable up to 7 years. He concluded that in the present circumstances the applicant is not entitled to be released on bail.
6. It is clear from the record that the alleged offence was committed on 10-1-2010 and the F.I.R. Was lodged on 9-2-2010. The complainant stated in the F.I.R. That after receiving letter for treatment he was referred to Nawabshah hospital and after completing his treatment he went to Police Station and lodging the F.I.R. Which took at least one month time which create doubts and the possibility of false involvement of the applicant cannot be ruled out and it is also probable that after due deliberation and consultation the F.I.R. Was lodged. Learned counsel argued that even no N.C. Was recorded which arguments was not rebutted by learned A.P.-G. The bail application was dismissed by the learned trial Court on 16-6-2010 in which it was stated that the case is fresh one and even the charge has not been framed. The F.I.R. Was lodged on 9-2-2010 and the applicant is in custody since 1-4-2010. Since the offence is not punishable with death and present applicant is under detention more than a period of one year and trial has not been concluded therefore, in order to seek benefit and advantage of amendment made under section 497, Cr.P.C, the learned counsel for the applicant has also, filed the diary sheets of the trial Court from 21-12-2010 to 23-6-2011.
7. I have scrutinized the case diaries. From 21-12-2010 to 20-1-2011, there were three formal dates in which on two dates, the applicant was not produced by the jail authorities and on one date the documents were supplied to the accused persons. Thereafter the matter was fixed on 1-2-2011 for framing of charge and then it was adjourned to 10-2-2011 with the directions to issue process to prosecution witnesses and also call case property. In between 10-2-2011 and 23-6-2011, the case was fixed for 10 times but matter was not proceeded for one or the other reasons. It is also clear that most of the dates, the applicant was produced in custody but the matter was adjourned for non-availability of prosecution witnesses or adjournment was sought by the complainant or work was suspended and on two dates, Vakalatnama was filed on behalf of accused persons. It appears that till 23-6-2011, not a single witness was examined in the case. Though for counting or ascertaining the delay, mathematical calculation is not required, however, in order to determine the actual cause of delay, I examined the diary sheets and reached to a conclusion that if the period of detention of the present applicant in the crime in question is counted from the date of framing of charge it is more than one year and if time is reckoned from the date of his arrest, his period of detention is more than 21 months but the trial has not been concluded and apparently the reasons for the delay shown in the trial cannot be attributed to the present applicant.
8. In view of the amendment made under section 497, Cr.P.C, it is clear that the court except where it is of the opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf direct that any person shall be released on bail who being accused of an offence not punishable with death has been detained for such offence for a continuous period exceeding one year and whose trial for such offence has not concluded. The crime in question is not punishable with death and period of detention is much more than one year but the trial has not been concluded so far. The learned A.P.-G. Did not argue that present applicant is previously convicted offender for an offence punishable with death or life imprisonment and or is a hardened, desperate and dangerous criminal, therefore, in my view, the applicant is entitled to be released on bail on the ground of statutory delay as he cannot be held responsible or accountable for the delay in the trial which is obvious and noticeable from the case diaries produced by the learned counsel for the applicant.
9. For the foregoing reasons the applicant is granted bail subject to furnishing solvent surety in the sum of Rs,200,000 (Two lacs) and PR bond in the like amount to the satisfaction of trial Court. The trial Court is also directed to expedite the trial and dispose of the case according to the directions contained in the National Judicial Policy.