1. This bail application had originally been filed on behalf of 14 applicants. However, when the bail application came up before me for hearing on the last date i.e. 7-7-1992, 9 applicants were granted bail on the ground that the case against them was identical to the case against two other co-accused namely, Muhammad Hassan and Ghulam Rasool, who had been granted bail earlier in previous bail applications. Bail was granted to the aforesaid 9 applicants relying upon the rule of consistency laid down by the Supreme court in three reported decisions namely (1) Muhammad Fazal alias Bodi v. The State 1979 SCMR 9. (2) Abdul Salam v. The State 1980 SCMR 142 and (3)
2. Abdus Sattar and other v. The State 1982 SCMR 909.
3. Hearing of the bail application on behalf of the following remaining five applicants/accused was adjourned for today, at the request of Mr. K.M. Nadeem, learned Assistant Advocate-General, Sindh, who wanted to obtain police papers:--
(1) Mumtaz son of Gul Hassan Janwari.
(2) Mohammad Khan son of Hayat Janwari.
(3) Hussain Ali son of Inayat Ali Janwari.
(4) Gul Hassan son of Ali Hassan Janwari.
(5) Imamuddin son of Walidad Brohi.
4. I have heard at length the submissions made on behalf of the, applicants by Mr. Abdul Razak Soomro, Advocate and of Mr. K.M. Nadeem, learned AA: G. Sindh, on behalf of the Stale.
5. In this matter, the first report had been made by the complainant, Muhammad Usinan son of Ali Baig Gopang, at village Usman Gopang on 20-4-1987 at the place of the incident, the incident having taken place a day earlier on 19-4-1987. The complainant had nominated 79 accused and to some of them he had assigned the role of firing and killing/injuring various victims and against others his allegation was general that they had also taken part in the attack on the complainant party. In all, 79 accused were named by the complainant in his report and, apart from that, he had also alleged that there were 30 other accused who were not named, but, according to the complainant, 20 amongst them were Magsis and 10 belonged to Janwari tribe.
6. Applicants Mumtaz son of Gul Hassan Janwari and Muhammad Khan son of Hayat Janwari were arrested on 2-5-1987, and challaned on 8-5-1987. Applicants Hussain Ali son of Inayat Ali Janwari and Gul Hassan son of Ali Hassan Janwari were arrested on 4-3-1988 and were challaned on 18-3- 1988. The fifth applicant Imamuddin son of Walidad Brohi was arrested on 26-11-1988 and was challaned on 14-12-1988.
7. In previous bail applications filed by some accused, late Mr. Justice Allah Dino Memon, by order dated 30-1-1991, had dismissed two bail applications being Cr. Bail Application No. 737 of 1990 and Cr. Bail Application No.813 of 1990. The first application was filed by applicant Mumtaz son of Gul Hassan Janwari and the other applicant in that application was Jhangal son of Khabbar Khan Magsi. In Criminal Bail Application No.813 of 1990 the two applicants were Janib son of Nihal Janwari and Illahi Bux son of Nihal Janwari, On the ground of delay of over two years, the learned Judge held as follows:-- "Adverting to the ground of delay in disposal of the case, it is of course an admitted position that applicants have remained in custody for more than two years but their case has not yet been concluded. However, looking to the nature of offence committed by them, and the number of persons who lost their lives in the present incident, the applicants can very well be said to be desperate and dangerous criminals and as such, their case is 'covered by proviso (iv) of subsection (1) of section 497; and therefore, they-are not entitled to bail on the ground of delay. In this connection reliance is placed on Moundar and others v. The State PLD 1990 SC 934; wherein it has been observed by their Lordships of the Supreme Court that:-- ---The facts of the case in hand can be taken into consideration while considering the question whether the case is covered by proviso (iv) of subsection (1) of section 497, Cr.P.C., In view of the above factual as well as legal position, I am of the considered view that the applicants are not entitled to bail and, therefore, the applications are dismissed.
8. However, I direct the learned Sessions Judge to complete this case within three months and report compliance. If some of the accused are still absconding, their case may-be separated from the case of those who are present before the Court, and the same may be completed within three months. If need be, the case may be proceeded with day to day. The learned trial Judge is further directed to submit to this Court, progress report, regarding each date of hearing."
9. The direction of learned Judge that the case be finalised within three months was not complied with. In fact, learned, counsel submits that after about 10 months of the order dated 30-1-1991 of late Justice Allah Dino Memon, the charge was framed and thereafter only a Tapedar had been examined and examination-in-chief of the Medical Officer was recorded on 23-12-1991 and, at the request of learned counsel for the accused, the trial Court postponed the cross-examination of the Medical Officer to be recorded after the evidence of the complainant. Thereafter no progress at all has been made in the case and, according to the certified copy of the case diary, it follows that over the last six months or so, one day before the date of hearings, some body appears on behalf of the complainant stating that the complainant had gone to, Baluchistan to get his-witnesses when had been arrested there and that the case-be adjourned and on this ground the case had been adjourned and even the complainant's evidence has not been recorded. According to the learned counsel for the applicants there are 16 witnesses to be examined according to the initial challan and submits that there is no prospect at all of the case being concluded even in the next one or two years.
10. Reliance is being mainly placed on the judgment in the case of Sanam Shah and 10 others v. The State 1986 P Cr. L J 2947 which was authored by me. In that case also several people had died in the incident (10 to be exact), and the argument on behalf of the State was that the case was covered by the IVth proviso to subsection (1) of section 497, Cr.P.C. The bail was, however, granted to the applicants in Sanam Shah's case and the principle laid down was as follows:-- "No doubt the fourth proviso to section 4970), Cr.P.C. Provides that an accused cannot be released on bail even on the expiry of two years of his trial commencing in case the trial is not finalised if he is a hardened or desperate criminal but from this it does not follow that law permits that the accused can be kept in. Custody as an under-trial prisoner for an indefinite period. The applicants have remained in custody for very long periods extending to nearly 3--l/2 to five years. The record of the trial Court, namely, Sessions Judge, Khairpur, has been perused. The trial has not even commenced. Even charge has not been framed. Then there are over 40 prosecution witnesses.
11. Some co-accused are absconding. It is apparent that there is no likelihood of the trial against the applicants concluding in the near future. It may take some years before the trial against the applicants is concluded if the proceedings continue in the same fashion as they have continued so far in the Court of the learned Sessions Judge, Khairpur.
12. Reference may also be made to the following two judgments of the Supreme Court:--
(a) Ahrar Muhammad and others v. The State PLD 1974 SC 176.
13. In this case it was held that though mere delay in prosecution of the case does not furnish sufficient ground for grant of bail, inordinate or unjustified delay amounting to an abuse of process of law can be taken as a relevant ground for grant of bail. It was observed in this case by the Supreme Court that delay which is so inodinate, so scandalous or so shocking as to furnish a ground for quashment of proceedings, provides an equally good ground for grant of bail. It was further observed that the Supreme Court generally was reluctant to interfere in bail matters, but it would not, however, shut its eyes and encourage perpetration of a flagrant and scandalous abuse of process of law.
(b) Riasat Ali and another v. The State PLD 1977 SC 480: In this case, the Supreme Curt, after noting the well-established principle of our criminal jurisprudence that the accused is presumed to be innocent unless he is found guilty by a competent Court, observed that holding of a person in custody for nearly four years without any prospect of even commencing of the trial strongly militates against the aforesaid principle and amounts to an abuse of process of the Court. It was observed that in that case the applicants had already been in custody for one year and 9 months and on reasonable calculation likely to remain in custody for another two or two and a half years before their trial could be expected to commence making a. Period of nearly four years in custody without trial, and in the circumstances the applicants were released on bail in that murder case.
14. I am conscious of the fact that late Mr. Justice Allah Dino Memon rejected the application of one of the applicants namely, Mumtaz son of Gul Hassan Janwari on the ground that his case was covered by IVth proviso to subsection (1) of section 497, Cr.P.C., but at that time just over two years had expired since the arrest of applicant Mumtaz son of Gul Hassan Janwari and then the learned Judge gave a direction to the trial Court to complete the case within three months, which direction was admittedly not complied with. More than one and a half years have passed since the order was passed by late Mr. Justice Allah Dino Memon on 30-1-1991. As observed, in one and a half years or so only charge has been framed and one formal witness namely, Tapedar, has been examined and only examination-in-chief of Medical Officer has been completed. There is substance in the contention of the learned counsel for the applicants that the complainant is avoiding to have himself examined by making applications for adjournment for the last several months. From the progress of the case it can be observed that there is no likelihood of the case being finalised in the next two or three months. I had asked Mr. K.M. Nadeem, learned A.A.-G. Sindh, whether he could make a statement as to the time in which the trial will be finalised against the applicants, but he expressed his inability to make any statement in this regard obviously on account of the progress- that has taken place in this case so far. Probably it may take one or two years before the trial is concluded. Two of the five applicants have now remained in custody for over five years, the other two for over 4 years and Imamuddin is going to complete 4 years in the next few moths. Relying upon the decisions of the Supreme Court referred to above and also my previous decision in Sanam Shah's case, I am of the view that the five applicants are entitled to bail on the ground of inordinate and scandalous delay that has taken place in the trial and that in the circumstances of this case IVth proviso to subsection (1) of section 497, Cr.P.C. Does not come in the way of the applicants for the grant of concession of bail to them.
15. In the circumstances the remaining 5 applicants namely, Mumtaz son of Gul Hassan Janwari, Muhammad Khan son of Haya1 Janwari, Hussain Ali son of Inayat Ali Janwari, Gul Hassan son of Ali Hassan Janwan and Imamuddin son of Walidad Brohi are directed to be released on bail on each of them furnishing one surety in the sum of Rs.1,00,000 (Rupees one lac only) with personal bond in the like amount to the satisfaction of the trial Court.
16. The trial Court should not have granted concession to the comp iainant from time to time as has been done by him so far. By entertaining applications filed a day before the dates of hearing on behalf of the complainant and adjourning the case next day on the date of hearing, the trial Court has adopted a novel procedure. If all the eye-witnesses were not available. The trial Court should have issued process against the complainant and recorded his evidence whereafter cross- examination of the Medical Officer could have taken place and then the other available witnesses could have been examined and in this way substantial progress could have been made with the object of finalising this case at an early date. The trial Court should have realised that over five years have passed since ,inc case was registered and hardly any progress has been made despite a very clear direction given by late Mr. Justice Allah Dino Memon by his order dated 30-1-1991 for finalisation of the case within three months. The learned Session Judge, Larkana is directed to take more positive action in the matter so that the trial is finalised as early as possible.
17. Cr. Bail Application No.445 of 1992 stands disposed of.
18. N-H.Q./1685-M/K