1. ' MUHAMMAD TASNIM, J.---Applicant Shaban Lanjar has filed this application seeking post-arrest bail, who is wanted in F.I.R. Crime No,132 of 2006 Police Station, Bhirya City District Naushahro Feroze registered for an offence under sections 17(3) and 17(4) EHO and sections 337-H(2), P.P.C.
2. ' Prosecution story is that the case was initiated on an F.I.R. Lodged at the instance of complainant Ali Bux Memon on 22-10-2006 at 7-45 hours alleging therein that present applicant Shahban alias Shaboo having Gun, co-accused Mashoo alias Mashaib having Pistol and Yousif having Repeater including three unidentified persons out of whom one person was armed with Rifle whereas two persons had Guns controlled over the complainant party and robbed 15 sewn clothes, one Mobile phone, cash and golden chain, on which Nadeem Ahmed cousin of complainant resisted the accused and on his resistance, it is alleged that the present applicant Shaban alias Shaboo with intention to commit murder fired a straight shot with his Gun upon Nadeem Ahmed which hit him and fell down; hence the F.I.R. Was lodged as stated above.
3. ' Learned counsel for the applicant has argued the present bail application on the sole ground of delay in trial. He submitted that the delay in the trial is scandalous and has seriously prejudiced the case of the present applicant. He further argued that it has been consistent view of the superior Courts that UTP cannot be kept behind the bars for unreasonable delay. He has filed the diary sheet of the trial Court from 15-11-2008 till 3rd March, 2010 and the present, bail application was filed on 9-4-2010. With the assistance of the learned counsel the aforesaid diaries have been perused and it is noticed that only one' date of hearing, i,e, 16-1-2010, the present applicant sought adjournment. On other dates of hearing when case was adjourned, either the case property was not produced in Court or the adjournment was sought by the complainant or the co-accused who are already on bail. He submitted that since the present applicant is not on bail, prosecution is not interested in prosecuting the case and serious prejudice has been caused to applicant. He prayed that the applicant be admitted to bail in view of the superior Courts judgments particularly in the case of Ghulam Abbas alias Abasi and others v. The State (PLD 2005 Karachi 255), Gul Beg alias Nangi v. The State (2005 PCr.LJ 147) and Aarab alias Katoo v. The State (2005 PCr.LJ 555).
4. ' On the other hand the learned D.P.-G. Has argued that the applicant has been assigned a direct role in the F.I.R. And there is ample material which connects the present applicant with the commission of the alleged offence. With regard to delay he submitted that delay has not been caused on the side of the prosecution but it has occasioned for the reasons mentioned in the case diary of the trial Court. In the end he stated that instead of admitting the present applicant to bail, a direction be given to the trial Court for concluding the trial within a period of three months.
5. ' I have heard the arguments of the learned counsel for the applicant and learned D.P.-G. For the State and I have also gone through the record so also the case-law cited at the bar.
6. From the record it appears that about 4 years have elapsed and no witness on the prosecution side has been examined till date. Since other co-accused are on bail and it is also found that on .Number of occasions the case property was not even produced in Court and, on some time the P.Ws were not in attendance. From the aforesaid facts and circumstances it appears that trial Court has not put serious efforts to conclude the trial. It is settled by now that delay on the part of the prosecution cannot be made basis for putting UTF for an indefinite period behind the bars as his guilt is yet to be settled by the competent Court after having the evidence of the prosecution.
7. On the other hand the act of the Court should not prejudice any party ' After examining the case diary of the trial Court produced on record and looking at the conduct of the present applicant I feel that in the present case delay is shocking and scandalous which entitles the present applicant for the concession 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 trial has observed as under:-- "Object of criminal trial was to make accused face trial and not to punish as under-trial prisoner.
9. Expeditious 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 an 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 slow 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 Ss. 87 and'88, Cr.P.C. Were taking unreasonably long time; where trial Court was lying vacant for sufficiently long time, where proceedings were stayed at the instance of co-accused, complainant or prosecution and 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 own 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. ' The learned counsel in support of aforesaid contentions has further strengthened his arguments by relying upon the case of Gul Bag alias Naangi (supra) wherein the learned Division Bench of this Court while granting bail to hn accused on the ground of delay in Trial observed that delay per se though was not ground for grant of bail but in cases where it deemed to be shocking and scandalous as in the reported case, the Court exercised its discretion in favour of accused and admitted him to bail.
11. ' Similarly the learned counsel has also invited my attention "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 Shabir v. State 2003 PCr.LJ 1521 where the period of detention was two years eleven months and twenty-four days."
12. ' 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 (Rs, five lac Only) and P.R bond in the like amount to the satisfaction of the learned trial Court.
13. ' 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 form 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.