' SHAHNAWAZ TARIQ.---Through instant application Ghulam Mustafa seeks post arrest bail in case vide Crime No,42/2010 of Police Station Sarhari District Sanghar under sections 302, 147, 148 149, 504 P.P.C.
2. Concisely facts of the prosecution case are that on 31-8-2010 at 1130 hours, complainant Zia-ur- Rehman lodged F.I.R. Alleging therein that there was old dispute between the complainant and Abdul Shakoor Khoso. On the above date, his -father Abdul Rasheed, brother Saeed ur Rehman, relatives Majeed ur Rehman, and Abdul Karim after finishing their work at chowk (Chowdagi) were going towards their village and when they reached near Rasti of Master Ali Nawaz, at about 1030 hours, one 2.0D Car and two motorcycles intercepected them. ,Complainant party saw that accused Noor Ahmed Khoso armed with Kalashankov, Nisar Khoso armed with .44 rifle, Abdul Shakoor with .222 rifle, Ahmed- armed with .222 rifle, Ghulam Mustafa (applicant) armed with Kalashankov and Mir Maqbool Khoso armed with .222 rifle alighted from the motorcycles while three unknown persons, one with repeater and two with Kalashankov got down from the car.
Accused Ahmed abused the complainant and asked remaining culprits to kill them. Accused Noor Ahmed fired a burst with his Kalashankov which hit his father while accused Nisar fired burst with his .44 rifle upon his brother Saeed-ur-Rehman, they fell down and then other accused with their respective weapons fired upon his brother and father. The complainant party resisted but the accused persons issued murderbus threats to them by aiming their weapons upon them.
Thereafter accused persons fled away in their car and motorcycles. As a result of the injuries, the complainant's father died at the spot while his brother Saeed ur Rehman succumbed to injuries in the Hospital. Thereafter complainant appeared at Police Station and lodged F.I.R.
3. Syed Ghulam Hyder Shah, learned counsel for the applicant has submitted that applicant is an innocent and has been falsely implicated in the case. The main ground agitated by the learned counsel for the applicant is that applicant was arrested on 8-9-2010 and charge has been framed on 9-9-2011 but despite of expiry of more than two years, the case has not been concluded and even no P.W. Has been examined by the prosecution and the delay in the trial is not on the part of the applicant /accused, and defence counsel has obtained only few adjournments, therefore, applicant is entitled for bail on the statutory ground of delay. He has relied upon 1996 PCr.LJ 921, 2001 PCr.LJ 1885, 1858, 1996 PCr.LJ 863, 1999 PCr.LJ 1235, 1996 PCr.LJ 921 and 1269.
4. Conversely, Mr. Pervez Ahmed Pirzada, learned counsel for the complainant contended that applicant is not only nominated in the F.I.R. But specific role of firing upon the deceased has been attributed to him. The incident occurred in the day time in which two persons lost their lives. The complainant and P.Ws. Clearly noticed and identified the applicant to be one of the culprits, who made firing upon the deceased and committed their murder. He contended that the charge has been framed by the trial Court and P.Ws are regularly attending the trial Court, however, sometimes due to strikes of the Bar, non-production of the applicant from concerned Jail Sanghar and sometimes due to non-availability of the Judge, case was adjourned, however, delay is not on the part of the prosecution. He submitted that there is sufficient evidence connecting the applicant with commission. Of brutally murder of two persons and even delay in trial cannot be attributed to the prosecution, therefore he is not entitled for concession of bail.
5. Learned Assistant P.G adopted the arguments advanced by the learned counsel for the complainant and opposed the bail application. He contended that the entire delay in trial cannot be attributed to the prosecution as the P.Ws are regularly attending the trial Court, however, case could not be proceeded due to non-production of the applicant from the concerned Jail Sanghar and sometimes adjournment applications moved by the learned counsel for the applicant.
6. I have heard learned counsel for the applicant and learned counsel for the complainant and learned AGP and examined the material available on record.
7. Perusal of record reflects that the applicant is nominated in the F.I.R. With specific role of causing firing upon the deceased alongwith co-accused which resulted into prompt death of two persons in bright day. As per F.I.R., the applicant alongwith co-accused came at place of incident on their motorcycles duly armed with deadly weapons and in prosecution of their common object made straight firing upon the deceased who died due to such injuries. The F.I.R. Has been promptly registered by the complainant and the delay of four hours is also well explained in the F.I.R. By mentioning that the complainant after getting postmortem report appeared at Police Station and registered the F.I.R., such delay is natural. The manner in which the accused persons gathered at the place of incident indicates that they had preplanned to commit murder of the deceased end their simultaneous firing reflect their common intention to commit murder of deceased. It is immaterial as to whose shot had proved fatal. Reliance in this regard is placed upon the case of Sher Bahadur v. Haji Ghaffar Ali Khan and others (1999 PCr.LJ 403).
8. From the perusal of case dairies, it is reflected that the delay in conclusion of trial is not exclusively on the part of prosecution, and trial was adjourned on different pretext i,e, non- production of accused from concerned Prison, strikes, adjournments sought by the defence and non-availability of the Presiding Office, however, prosecution witnesses were also not in attendance for some dates. Both counsel have confirmed that Presiding Officer has been posted in trial Court.
9. Admittedly, applicant armed with K.K along with other co-accused having lethal weapons, have committed the brutal murder of two deceased by spreadly firing on main road in bright day and 12 empties of K.K were recovered from the spot, which prima facie establish that the applicant is a hardened and dangerous criminal, and does not deserve for the concession of bail on the ground of statutory delay as provided in third proviso to section 497,Cr.P.C.
10. Consequently the application for bail moved by the applicant stands dismissed. However the learned trial Court is directed to conclude, the trial of case within four months, by adopting all possible coercive methods to ensure the availability of witnesses. It is also expected that learned counsel for the applicant and learned counsel for the complainant shall remain in attendance on each and every date before the trial. Court and will avoid the unnecessary adjournments. Learned counsel for the complainant shall produce private P.Ws. On each and every date. SSP Sanghar is directed to ensure the attendance of official witnesses before the trial Court. Superintendent concerned Prison is strictly directed to ensure all required arrangements for production of -UTP before the trial Court without fail. Office is directed to send a copy of this order to learned A.A.-G.
Sindh for information and compliance.
11. The observations made herein above are tentative in nature and would not affect the affect the case of either party at the trial.