' Applicant is facing trial in the Court of IIIrd Additional Sessions Judge, Larkana in a case under section 17(4), Offences Against Property (Enforcement of Hudood) Ordinance, 1979, section 302, P.P.C. In Crime No.6 of 2000 of Police Station, Market, Larkana.
2. The brief facts as enumerated in the F.I.R. Are that Badal Khan was his cousin, his brother Abdul Hameed used to reside in Dubai, who had sent Rs.15,000 through Hundi dealer Dhani Bux. On 25-1- 2000 in the morning time complainant, Badal, Nazar Muhammad and Muhammad Ayoob came to Larkana to collect the money. Badal Khan received the money from there, thereafter they proceeded to Civil Hospital, Larkana to inquire about the health of their relative Dili Jan Brohi. At about 3-45 p.m. They reached in the street adjacent to Pakistan National Centre in Jinnah Bagh, Larkana, behind them three persons armed with pistols came running. The accused persons pointed that weapons at the complainant party, one of them robbed cash of Rs.15,000 from Badal Khan, who grappled the accused in order to catch him, on which two other co-accused fired from their pistols at Badal Khan, who hit him on his right jaw, neck and other parts of the body. He raised a cry and fell down. Out of fear, the complainant party remained silent. On fire-arm reports police party of Market Police Station reached on mobile and encircled the accused. One accused made his escape good and two were apprehended alongwith pistols. The accused with the robbed money disclosed his name as Abdul Hakeem Sargani (present applicant). On search, robbed money and pistol was recovered and from other co-accused police party also recovered a pistol.
On enquiry he disclosed his name as Mukhtiar Ahmed. At that time the apprehended accused disclosed the name of third accused as Akbar. The complainant party then saw that Badal Man had received fire-arm injury on his left jaw 2. Left neck 3. Right buttock 4. Back of right thigh and 5.
Front of right thigh. He was bleeding and had died. The complainant party left the P.Ws. At the dead-body and accompanied with the police and apprehended accused persons alongwith recovered cash and weapons went to Police Station where the report of the incident was recorded.
It is stated in the F.I.R. That accused persons duly armed with weapons had killed Badal Khan by firing upon him due to his resistance. The complainant party had also disclosed in the F.I.R. That they had seen the third accused, who had made his escape and if seen again he would be identified.
3. After usual investigation, the charge-sheet was submitted in the Court of law and at present the trial is being held by the learned IlIrd-Additional Sessions Judge, Larkana. The applicant preferred his bail application in the trial Court, but the same was rejected by an order dated 9-1-2003 by the incharge of IlIrd Additional Sessions Judge, Larkana.
4. Mr. Khalid Memon, learned counsel for the applicant has contended that the applicant/accused is in custody since 25-1-2000 and the charge was framed on 21-12-2001, but still not a single prosecution witness has been examined and three years and 9 months has been passed, the applicant/accused is rioting in jail, as there is inordinate, scandalous, shocking delay in conclusion of the trial and there is no likelihood that the trial will conclude in near future, as the trial Court is lying vacant. It is further pointed out by the learned counsel that in this crime the charge was framed on 21-12-2001, but as per case diary dated 19-1-2002 the Presiding Judge was transferred and up to this time the trial Court is lying vacant, as one year and 9 months have been passed and Presiding Officer has not been posted and applicant/ accused is rioting in custody without trial. Mr. Memon learned counsel for the applicant has pointed out that the case diary from 10-2-2000 up to 2-8-2003, it reflects that the applicant/accused has not sought any adjournment for delaying the trial proceedings nor on his behalf. Mr. Memon further submits the bail is being sought merely on the ground of hardship, as the applicant/accused has remained in custody for about 3 years and 9 months without trial and has not sought. Any adjournment, therefore, he has no fault for delaying the trial proceedings. Mr. Memon in support of his arguments, has relied upon cases of Shabir and another v. State 2003 PCr.LJ 1521 and Abdul Hameed and others v. State 2003 M LD 19.
5. Mr. Gul Hassan Solangi, learned State counsel has vehemently opposed this application on the ground that applicant/accused and other co-accused Mukhtiar Ahmed were arrested at the spot alongwith robbed money and the weapon while third co-accused Akbar is absconding, who has been declared as proclaimed offender and the prosecution is not at fault for holding the trial of the applicant/accused as the trial Court is lying vacant.
6. I have considered the arguments of the learned counsel for the respective parties and the case- law cited at the bar. The material placed on the record has been examined by me very carefully.
7. As per prosecution case, applicant/accused and co-accused Mukhtiar Ahmed were arrested at the spot on 25-1-2000 alongwith robbed money and the weapons and the name of third accused was disclosed by the applicant and co-accused as Akbar, who has been declared, as proclaimed offender by the trial Court. The charge was framed in this case on 21-12-2001 and the process was issued to the prosecution witnesses. On 5-1-2002 the accused/applicant and co-accused Mukhtiar Ahmed were not produced by the jail authorities. On the said date no prosecution witnesses were present and the case was adjourned to 19-1-2002 for evidence. On 19-11-2002 the applicant/accused and co-accused Mukhtiar Ahmed were produced in custody and no P. Ws.
Were present. It is stated in the said case diary that the Presiding Officer was transferred and case was adjourned on 7-2-2002 and no Presiding Officer has been posted up to this date. It is golden rule that expeditious and fair trial is fundamental right of the accused. The trial Court is supposed to dispose of the cases without unnecessary delay in imparting justice. If an accused is involved in a heinous offence, the criminal case should not be linger long as it will cause erosion of public confidence and other side will feel helplessness for non-conclusion of the trial against hardened criminal.
8. In case of Shabir v. State 2003 PCr.LJ 1521, it has been held while considering large number of authorities. The operative part of the observations held in the above mentioned case are reproduced hereinbelow:-- "Besides the above it would be appropriate to observe that hardship can also be looked into by Courts considering the age of the accused. His physical condition and the condition of the jails as it stands today. If a young man is incarcerated inside for the first time keeping in view the abnormal conditions prevailing inside the jail, the delay in disposing of his matter would have a tremendous psychological impact on him. If the objective of the law was to punish a person by keeping him behind bars then it should also be kept in mind that when the person comes out he may have become a hardened criminal. The superior Courts have also held and observed that the proceedings that take place before the trial Court continue on the presumption that the person is innocent and he has to face trial and answer questions. The burden is upon the prosecution to prove his guilt. The question here is what happens if he is found innocent. Who would account for his being locked up for months and years. When a person is convicted he gets the benefit of section 342-B, but what happens when he is acquitted therefore, keeping in mind all the above factors and the various judgments being given from time to time bail should be granted in cases of hardships, if some of the principles mentioned above are applicable."
' In the same authority, it has been highlighted as under:- "In the cases at hand learned counsel has produced certified copies of the case diaries to substantiate the stand that case has not been proceeded with due CO no fault of the applicants."
' In the present case, the applicant/ accused was arrested on 25-1-2000 and the trial Court framed the charge on 21-12-2001 and on 19-1-2002 the Presiding Officer was transferred and Court is lying vacant up to this time. It has been held in several authorities that the object of the criminal prosecution is not to punish an under trial prisoner for the offence alleged against him, but the object of the case is that accused must face the trial and answer the charge. There is such observation extended by the Honourable apex Court in the case of Mian Manzoor Ahmed Watto v.
State 2000 SCM R 107 . The applicant/ accused cannot be detained for indefinite period without trial, as the delay is detrimental to the applicant/accused and it cannot be computed how long it would take in the future to complete the trial. The Court has to see the hardship while considering the condition of the jails in the Province.
9. In the case of Riasat Ali v. State PLD 1977 SC 480, the accused was behind bars for four years and it seemed that the trial would never end, but Court came to the conclusion that in the criminal jurisprudence an accused person is presumed to be innocent unless found guilty by a competent Court and, therefore, to hold a person in custody without any prospect of commencement of the trial, amounts to an abuse of the process of the Court. Although the delay further likely to be caused in the disposal of the case due to various circumstances and in the absence of Courts was shocking. The Honourable Supreme Court gave finding that the Court should take immediate and effective steps for augmenting the strength of trial Judges. Although, the applicant/accused was apprehended at the spot alongwith robbed money and weapons alongwith co-accused, but the conclusion of his trial is not inside in near future, but nevertheless the people cannot be kept behind the bars for indefinite period without trial. The case-law cited by the learned counsel for the applicant are relevant in respect of the contentions raised in this case.
10.. In this view of the matter and looking to the hardship caused owing to inordinate delay in conclusion of the trial in the peculiar circumstances of the case in hand, I am of the view that the applicant/accused is in custody since last three years anti 9 months and the Court is lying vacant and if the Presiding Officer is posted in near future, the conclusion of the trial will take more time, as the prosecution witnesses are not attending the Court in spite of issuance of the process.
11. Since there is shocking delay in conclusion of the trial, therefore, the applicant/accused has made out a case of hardship for grant of bail.
12. Resultantly, the bail is granted to the applicant/accused on furnishing two solvent sureties in the sum of Rs. One hundred thousand (rupees one lac) each and P.R. Bond in the like amount, to the satisfaction of the trial Court.
' The trial Court is at liberty to cancel the bail of the applicant/accused, if he misuses, the concession of bail in future.