1. MUHAMMAD SALEEM JESSAR, J.---By this order I intend to dispose of instant bail application, which find its roots from the order dated 24.03.2015 handed down by learned IInd Additional Sessions Judge, Karachi (South) whereby he has declined to release the applicant on post-arrest bail on statutory ground of delay in conclusion of his trial. The case as reported has already been challaned by the police on 25.02.2013 and same is now pending for trial before the court of learned VIIth Additional Sessions Judge, Karachi (South) vide Sessions Case No,472 of 2013 re-The State v.
2. Mohammad Naseeruddin, emanating from Crime No,30 of 2013 registered with PS Baloch Colony, under Sections 302 and 34, P.P.C.
3. The crux of the prosecution case as unfolded by the complainant Maqsood Ali in captioned FIR are that on 29.01.2013 he was present at his shop where he received call from his maternal uncle Abrar Ahmed to the effect that three bandits boarded on motorcycle duly armed with ammunition had come and caused injuries to Mohammad Siddique by making fires upon him. He then rushed towards his maternal uncle and learnt that they had shifted Mohammad Siddique to Jinnah Hospital and when he reached over there in emergency ward where doctor declared that Mohammad Siddique had died and he had sustained a bullet injury at his abdomen. His maternal uncle Abrar Ahmed, who was present over there, told him that one boy knocked the door of Mohammad Siddique at 9.30 a.m, he saw a boy standing there and another was standing adjacent to him near a black colour CD-70 motorcycle behind him, was standing near to his house and together with him third boy who later was identified as Naseeruddin son of Mohammad Ibrahim was standing behind the motorcycle without number. As he (deceased Mohammad Siddique) came out, one boy fired a bullet from pistol upon him, then all three accused boarded on motorcycle and decamped from the scene while making fires. He (Abrar Ahmed) had thrown a flower pot upon them from Balkoni. It is further alleged that 03/04 days prior to the incident Naseeruddin had extended threats to Mohammad Siddique for causing his murder. Mohammad Siddique was the paternal uncle of accused Naseeruddin's wife namely Farheen, as he was maltreating to niece of Mohammad Siddique, therefore, there had been exchange of hot and harsh words and due to that grudge Naseeruddin with the help of his two companions came on motorcycle and fired upon Mohammad Siddique, resultantly he succumbed to his injuries at Jinnah Hospital. His maternal uncle Abrar Ahmed may recognize them if shown again to him. To such effect, present FIR was lodged.
4. After registration of case, the investigation was entrusted to ASI Rao Dilshad, who arrested the applicant on 29.01.2013. Later, the investigation was handed over to SIP Chaudhery Aman Ali and the applicant was remanded to Judicial Custody on 11.02.2013. After completion of codal formalities challan of the case was filed on 25.02.2013 before competent court of law having jurisdiction and subsequently was sent up to learned Sessions Judge concerned who subsequently assigned it to learned Ilnd Additional Sessions Judge, Karachi (South) where formal charge was framed against the accused on 25.09.2013. Later, the court became vacant and therefore the Session Case No,472/2013 was withdrawn from the file of learned Ilnd Additional Sessions Judge, Karachi (South) and was made over to learned VIIth Additional Sessions Judge, Karachi (South) on 28.12.2016. It is pertinent to mention that in all three bail applications filed by the applicant before the trial court and his first bail application were dismissed by means of order dated 07.08.2013 on merits. His second bail application was dismissed as not pressed by order dated 16.02.2015 and third one was filed on statutory ground of delay in conclusion of his trial as he had completed almost two years continuously in custody from the date of his arrest and that too met with same fate vide order 24.03.2015 giving rise to file instant application before this court which was allowed by order dated 08.06.2015 and the applicant was ordered to be released on bail against the surety in the sum of Rs,200,000/- (Two hundred thousand rupees) to the satisfaction of learned trial court.
5. The complainant being aggrieved by order dated 08.06.2015 passed by this court has assailed the said order before Honourable Supreme Court of Pakistan through Crl. P.L.A. No,50-K of 2015, where with the consent of parties said petition was converted into appeal and, was disposed off by means of esteemed order dated 20.08.2015, in following terms:-- In such circumstances, he has fairly submitted that the......impugned order may be set-aside and the Bail Application No,381/2015 be remanded to the High Court of Sindh, Karachi for rehearing in accordance with law and its disposal within two weeks, while in the meantime, respondent No,01 may not be arrested. To this suggestion, learned Additional Prosecutor General Sindh has candidly conceded.
2. Accordingly, this petition is converted into appeal and disposed off in the above terms, however, with directions that on remand, this bail application shall not be heard by the same Hon'ble Judge of the High Court who had earlier admitted respondent No,01 to bail through the impugned order."
6. Mr. Mohammad Illyas Khan, learned Advocate for the applicant/accused contended that per FIR no specific role of causing firearm injury to deceased Mohammad Siddique has been assigned to him except his mere presence; that he is shown to be armed at the time of alleged occurrence. He next submitted that the complainant is neither an eye-witness nor he had seen the alleged incident. He further submitted that the applicant/accused has been nominated in the FIR in the background of previous grudge between the applicant and the deceased over matrimonial dispute and no concrete material has been collected by the I.O. during investigation. He further submitted that though there was no delay on the part of applicant or anybody else acting on his behalf, yet trial court has rejected his bail application thrice even on statutory ground of delay. He further submitted that there is no illegality in the order dated 08.06.2015 passed by this court, as, according to him, one cannot be kept behind the bars for indefinite period without progress in his trial and while granting bail on sole ground of statutory delay, merits are not to be touched. He has also focused upon the charge framed by the trial court against the applicant and others, and submitted that same is also defective and per charge no specification has been shown against the applicant except general role, which even belies the version mentioned in the FIR. He lastly submitted that after grant of bail by this court right from 08.06.2015 the applicant has not misused the concession extended to him, moreover, he has enjoyed liberal life more than two years and thus cannot be deprived of his liberty as, according to him, it is also settled law of the superior courts that every accused would be presumed to be blue eyed boy of the law until and unless found guilty of the alleged charge. Mr. Mohammad Illyas Khan has also focused upon the latest progress report furnished by learned trial court/VII-Additional Sessions Judge, Karachi (South) wherein it is specifically mentioned that usually counsel for co-accused Mohsan remained absent and obtained adjournments and on some dates the custody of co-accused Mohsan was not produced and therefore, show-cause notice was issued to Superintendent, Central Prison, Karachi.
7. In support of his contentions, he has placed reliance upon the cases of Abdul Hameed and 2 others v. The State 2003 M LD 19, Abdul Waheed v. The State 2005 M LD 802, Aarab alias Katoo v. The State 2005 PCr.LJ 555, Niamat Khan v. The State 2013 PCr.LJ 1162. He lastly prayed that bail granted to him by this court may be confirmed.
8. Conversely, Mr. Farhan Zia Abrar, advocate for complainant and Mr. Zafar Ahmed Khan, Additional Prosecutor General, have jointly opposed the bail application and contended that the applicant being nominated in the. FIR is involved in a heinous offence, therefore, does not deserve any leniency or concession in shape of bail. They however, could not controvert the fact that nothing has been shown against the applicant in FIR except his mere presence; even the alleged motorcycle through which alleged three bandits had come and allegedly committed the offence has not been secured from the applicant nor was produced by him. The learned counsel for complainant as well as learned Additional PG were also confronted with certain case dairies showing that either the process was not issued or the PWs were not in attendance and on some dates B.Ws and NBWs were ordered to be issued against the PWs. They however, pressed for rejection of bail application and stated that applicant may be taken into custody.
9. I have heard learned counsel for the respective parties, scanned the material made available before me and have also gone through the citations relied upon by the learned counsel for the applicant.
10. Under the scheme of Criminal Procedure Code, 1898, nowhere it is provided that an individual be kept behind the bars for indefinite period without progress in his trial, as expeditious and fair trial is a fundamental right of every accused. The intention of law is that a criminal case must be disposed off without unnecessary delay. It will not be difficult to comprehend inordinate delay in parting justice was likely to cause erosion of public confidence in the judicial system, on one hand, and on the other hand, it was bound to create a sense of helplessness and despair and feelings of frustration and anguish apart from the aiding to their woes and miseries. In the instant case, applicant had allegedly sought some adjournments and per case dairies and latest progress report furnished by the trial court, the applicant is not at fault. The prosecution has also failed to establish that the applicant is a notorious, dangerous or hardened criminal and had misused the concession in any manner.
11. Since, no specific role of causing injury to deceased is assigned to applicant and he has not misused the concession of bail extended to him. Besides after confronting incarceration in continuous custody from 29.01.2013 to 11.06.2015 he was bailed out and has enjoyed liberty of bail for more than two years and he is not shown to have abused concession of bail in any manner and the reason given by this court for granting post-arrest bail on statutory ground of delay in conclusion of the trial was well founded. Reference can be made to the case of Meeran Bur v. The State PLD 1989 SC 347. Further, the delay so occasioned in conclusion of the trial was not absolutely attributed to applicant and this fact has been confirmed by the learned trial Court in its progress report furnished by her vide No,ADJ/S/38-2017 dated 19th May, 2017, whereby learned Presiding Officer submitted as under:--
1. ..............
2. Usually counsel for accused Mohsan remained absent and obtained dates thereby hampering proceedings especially when evidence of PW Sajjad was about to be concluded on 28.03.2017 and 05.04.2017 he moved adjournment requests. On few dates custody of accused Mohsan was not produced for which show-cause notice was issued to the Superintendent Central Prison, Karachi.
12. In this respect I am fortified with the dicta laid down by the Hon'ble Supreme Court of Pakistan in case of Abdul Haleem Lakho v. Abdul Karim alias Karim Bux and others reported as 2005 SCM R 1539, whereby cancellation was sought and the Honourable Supreme Court has declined to interfere in the findings made by High Court and held in para No,08 of its esteemed judgment as under:-- "Without commenting on the merits of the submission and dilating upon the merits and demerits of the prosecution case, which might prejudice the case of either side, suffice it to say that the discretion exercised by the High Court does not suffer from any apparent illegality or arbitrariness.
13. Learned Judge in the High Court appears to have weighed the facts and circumstances of the case carefully for the limited purposes of grant or otherwise of the bail, which does not warrant any interference by this Court in the exercise of Constitutional jurisdiction. It may further be pointed out that the respondents during the last more than two years having enjoyed the concession of bail without misusing it should not be put behind the bars by recalling the bail order at this stage."
14. Admittedly, the incident was unseen and the complainant had not witnessed the alleged commission of offence though one Abrar who allegedly was present at the time of incident at balcony of his house had not disclosed to complainant regarding role of present applicant or any of the accused. Moreover, that Abrar had not become complainant. It is also the case of prosecution that after sustaining alleged injury the deceased was taken away towards hospital where he succumbed to injuries, however; the deceased could not disclose the name of any of the culprits or any motive against present applicant. There existed grudge cum enmity between the parties over matrimonial affairs. It appears that applicant has been nominated in FIR due to enmity. Neither the complainant nor the said Abrar or even the deceased himself had specified role of applicant except mere his presence. The learned trial court did not take into consideration these grounds while declining the bail to applicant on merits as well as on statutory ground of delay in conclusion of his trial. It is well settled principle of law that every accused would be presumed to be blue eyed boy of the law until and unless he may be proved guilty of alleged charge and law cannot be stretched upon in favour of the prosecution particularly at bail stage. Grant or refusal of bail in criminal cases primarily depends upon the facts of each case and no hard and fast rule can be laid down. No legal or technical purpose would be served by keeping the applicant/accused in custody for an indefinite period when trial has become uncertain and it is not known as to when trial shall be concluded. In view of discussion whatever has been discussed herein above and in view of the dicta laid down by the Hon'ble Supreme Court of Pakistan in cases of Meeran Bux and Abdul Haleem Lakho (Supra), the applicant has successfully made out a good case for his admission on bail. Consequently instant bail application is allowed and the bail granted to the applicant in terms of order dated 08.06.2015 is hereby confirmed on same terms and conditions.
15. While accepting instant application and maintaining the order dated 08.06.2015, I would direct the learned trial court to expedite the trial and complete it as quickly as possible by adopting all methods in procuring the attendance of prosecution witnesses. It may also be clarified that the trial court shall not be influenced by the observations made herein above and shall decide it purely on merits and material made available before it without causing prejudice to either side.