ORDER
SHEET
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Date Order
with signature of Judge
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DATED OF HEARING 02.10.2014
Mr. Anwar Ali Shaikh Advocate for the Applicant/accused.
Mr. Ali Haider Saleem APG for State.
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SYED HASAN AZHAR
RIZVI J; First
Bail Application bearing No.1007/2012 filed by the present Applicant before
this Court was dismissed on merit vide order dated 06.12.2012. Thereafter, the
Applicant filed another Bail Application bearing No.115/2014, which was not
pressed by the learned Counsel for the Applicant and the same was dismissed accordingly
with direction to the Trial Court to examine at least complaint and material
witnesses within a period of (30) days from the date of receipt of this order
and conclude the trial within three (03) months from the date of order and
after completion of the evidence of the complainant and material witnesses
within stipulated time the applicant may file fresh Bail Application before the
trial Court vide order dated 05.05.2014. Thereafter, Applicant filed Bail
Application in Sessions Case No.917/2012 on the ground of statutory delay but
the same was dismissed by the learned Ist Additional Sessions Judge,
Karachi-East vide order dated 21.07.2014, hence this bail Application is filed
on the ground of statutory delay.
2. The brief facts as narrated in the FIR
are that on 12.07.2012 the complainant alongwith his brother Yameen was going
on motorcycle from their printing press to their house. The complainant was
driving the motorcycle, his brother was sitting on rear seat and in the way
near Gurumandar two boys came on motorcycle bearing registration No.KES-1929,
Super Star, Black Colour and abused them and complainant and his brother due to
fear tried to run away from there in order to save them but culprits chased
them and alighted near Traffic Section, Gurumandar and started firing on them.
Complainant’s brother received bullet injury on his back bone and the culprits
fled away from the place of incident by leaving/throwing their motorcycle at
the spot. Complainant shifted his brother Yameen to Agha Khan Hospital through
ambulance where he was died and the complainant took the dead body of his
brother to Civil hospital, hence he lodged the FIR.
3. Learned Counsel for the Applicant contended
that the applicant/accused was arrested on 18.07.2012 and he is continuously in
custody for more than two years. Charge was framed on the Applicant by the
Trial Court on 04.01.2013 but not a single prosecution witness has been
examined by the Trial Court despite direction given by this Court in Bail
Application No.115/2014 vide order dated 05.05.2014. Learned Counsel for the
Applicant further contended that the delay in concluding the trial is not on
the part of the Applicant and such delay is caused by the prosecution as none
of the prosecution witness has been produced as yet. Learned Counsel has filed
certified copies of the diary-sheets of
Sessions Case No.917/2012, which established that no prosecution witness
has been examined whereas applicant/accused and defence counsel were present on
each and every dates of hearing before the Trial Court. Learned Counsel for the
Applicant urged that the Applicant is entitled for grant of bail on the ground
of statutory delay as he is confined in jail for last two years.
4. Mr. Ali Haider Salim learned AAG
vehemently opposed the grant of bail to the Applicant and submitted that the Applicant/accused
is involved in a heinous crime of murder and he was also identified by the
witness during identification parade.
5. I have heard Mr. Anwar Ali Shaikh
Advocate for the Applicant, Mr. Ali Haider Saleem APG and carefully perused the
material available on record with their assistance.
6. This bail application has been filed
solely on the ground of statutory delay and learned Counsel for the Applicant
has placed on record certified copies diary-sheets of the case pending before
the learned Trial Court commencing from 04.01.2013 to 10.09.2014. From perusal
of the case diaries, it reveals that since arrest of the Applicant/accused on
18.07.2012 he is behind the bars. It further reveals that charge in the matter
was framed on 04.01.2013 and not a single witness has been examined as yet
despite direction given by this Court vide order dated 05.05.2014 passed in
Criminal Bail Application No.115/2014. Applicant/accused has remained behind
the bars since 18.07.2012 more than two years and delay in conclusion of trial
is not on the part of the Applicant as reflects from the diary sheets referred
to above.
7. Report was called from the concerned CRO
and Superintendent, Central Prison, Karachi and vide report dated 18.09.2014
submitted by the Superintendent, Central Prison two FIRs viz 326/2012 and
327/2012 registered at P.S. SIU originating from the same incident were lodged
against the Applicant/accused wherein he is facing trial in the Competent Court
of law. As per report of CRO submitted by ADIGP on behalf of DIGP, CIA, Karachi
no other case is available on record of CRO, CIA Karachi.
8. Delay is not a valid ground for grant of
bail. However, to avoid injustice and abuse of process of law long delay in
conclusion of trial when the delay is on the part of the prosecution and same
is not caused by the defence, could be a good ground for bail. Long unexplained
delay in conclusion of the trial amounted to abuse of process of law.
Applicant/accused is under confinement for more than two years and not a single
witness has been examined so far and such inordinate delay is not on the part
of the applicant as reflects from the diary sheets referred to above.
9. Above
are the reasons of my short order dated 02.10.2014 whereby Applicant
was granted bail subject to furnishing solvent surety in the sum of Rs.2,00,000/-
(Rupees Two Lacs Only) and P.R. Bond in the like amount to the satisfaction of
the Trial Court.
10. Observations made hereinabove are of
tentative in nature and the trial Court shall not be influenced by any such
observations.
Karachi
Dated
:________________ JUDGE