ORDER ALI MOHAMMAD BALOCH, J.- This is an application for bail on behalf of the accused/applicants Walu alias Wali Muhammad, Mumtaz and Nachoo in a case for the offence under Sections 302,147,148,149 PPC pending in the Court of Sessions Judge, Karkana. The prosecution case in nut-shell is that the 3 applicants, co-accused Mushtaq and Malook had killed Wahid Bux when he was trowelling in a bus with P.Ws. Ali Akbar, Allah Wasayo and Haji Khan.
Applicant Wali Mohammad is said to have fired at Wahid Bux after he was dragged out from the bus, applicant Mumtaz, Nachoo, co-accused Malook and Mushtaq are said to have given knife blows to Wahid Bux. Wahid Bux died as a result of the injuries. This application for bail is being pressed on the sole ground of delay in proceeding. Earlier to this, application for bail moved by the applicants on the ground of delay, was dismissed on 3.6.1991, again their request for grant of bail was turned down on 22.8.1993. However, directions were issued by the Hon'ble chief Justice that the case be disposed of before 30.9.1993 and its compliance be reported. These directions of the Court have not so far been carried out as the case is still pending.
2. I have heard the arguments of the learned counsel for the applicants, the counsel for the State and also the counsel appearing for the son of the deceased. The main thrust of the arguments of the advocate for the applicants is that the applicants were arrested on 13.12.1988 and since then they are languishing in jail. They have remained in jail for a period of 6 years, while the trial has not come to an end. Mr. Habibur-Rasheed, learned counsel for the State and Mr. Aleem Akbar Shaikh, learned counsel appearing for the son of the deceased, however, opposed the grant of bail to the accused even on the ground of delay as they wanted this Court to dispose of the bail application with a fresh direction to the trial Court for earlier decision of the case. The charge against the applicants was framed on 8.4.1991 and since then the case is lingering on and the trial has not come to an end. Learned counsel appearing for the applicant has produced copies of the case diaries and the perusal of the same gives an impression that the delay in disposal of the case cannot be attributed to the accused persons although on some occasions the adjournments have been sought by the counsel for the applicants. This case is prolonged for 6 years and mainly the delay appears because of non-production of the accused before the Court by the jail authorities, apart from the other reasons that some times the case property was not before the Court and some times the witnesses were not in attendance. However, the fact remains that the accused are languishing in jail and the case has not yet been decided. The application has not been pressed on merits of the case but merely on the ground of delay and, therefore, it is necessary to find out whether on this ground the applicants deserve to be released on bail or not. Earlier to this, it was the right of the accused to be released on bail, if they remained in jail for a period of 2 years and if the trial did not conclude within such period but that right of bail under the statute is no more available to the applicants. Therefore, under the principles of law; it has to be seen whether the applicants are entitled to be released on bail on the ground of delay. Looking to the circumstances of the case, it is decided by the superior Courts that if the delay is inordinate and shocking, the accused have been granted bail. The accused are not to be kept behind the bars as a matter of punishment. They are to be retained in custody so that the trial may take place and the decision of their guilt or otherwise be pronounced. However, it has been held in the case reported in PLD 1974 S.C. 224 that the inordinate delay in prosecution, which amounts to abuse of the process of law can be treated as sufficient ground for grant of bail. In the present case, the majority of the adjournments are not due to any fault of the defence and, therefore, it can be safely said that the prosecution has been dragging on for more than 6 years while the accused were languishing in jail. Such conditions leave no room to come to the conclusion that the conduct of the prosecution amounts to abuse of the process of the law and Courts. Therefore, relying on the above cited rule laid down by the Supreme Court, I feel that denial of bail to the applicants in this case will not be justified. Under these circumstances, it is ordered that the applicants may be released on bail cm furnishing one surety each in the sum of Rs.100,000\- (Rupees one lac) and P.R. Bond in the like amount to the satisfaction of the trial Court.