ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl. Bail Appln. No.D-231 of 2009.

Date of hearing

ORDER WITH SIGNATURE OF HON’BLE JUDGE

14.7.2009.

1. For orders on office objection.

2. For hearing.

Messrs Ali Nawaz Ghanghro and Athar Abbas Solangi, advocates for the applicant.

Miss Rubina Dhamrah, State Counsel.

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Learned Counsel for the applicant states that applicant Tahir son of Mumtaz Ali Mugheri has been arrested on 5.11.2004 and since then in custody. He further states that the main ground of seeking bail is hardship and delay in conclusion of the trial. He states that the bail application was moved before learned trial Court on behalf of the applicant and the same was dismissed on 1.6.2005. Thereafter, bail application was moved before this Court and the same was disposed of 24.8.2005 with directions to record the statements of the abductee as soon as possible and without unnecessary delay. He further added that this Court also passed order on 27.11.2006 in Crl. Bail Appln. No.706/2006 filed by Shafqat Hussain and others versus The State and observed that the trial Court should examine alleged abductee Santosh Kumar within a period of two months, but up-till now neither case has been concluded nor abductee is examined. He further stated that the bail application was moved before this Court, wherein abductee had sworn his affidavit and exonerated the applicant from the commission of the offence and this Court passed order on 23.5.2008 directing the learned trial Court to decide the matter preferably within three months, but the order passed by this Court has not been complied with so far and only complainant has been examined. Thereafter, the absconding accused have been arrested and the matter is now at the stage of framing of amended charge. He further states that the trial Court is lying vacant from last about three months and there is no possibility in near future for conclusion of trial.

The bail application was moved before the trial Court much after the period specified by this Court, wherein abductee Santosh Kumar again sworn his affidavit and exonerated applicant from the commission of the offence, but again same was not considered by the trial Court, who passed order on 15.1.2009.

Miss Rubina Dhamrah, learned State Counsel, raises the objection on the grant of bail on the ground that the plea of hardship has not been taken in the trial Court. She further added that charge was framed and complainant Rajesh Kumar and P.Ws Manzoor Ali, Ashique Ali, Gulzar Ahmed and Ali Gohar were also examined by the learned trial Court and the abductee is to be remained for want of time, therefore, at this stage she opposes the request for grant of bail.

We have heard the arguments of learned Counsel for the parties and perused the material available on the record. It is well settled principle of law that inordinate delay in prosecution amounting to abuse of process of law and it can be treated as sufficient ground for grant of bail. In the case of Ahrar Muhammad versus The State, reported in PLD 1974 S.C 224, the Hon’ble Supreme Court was pleased to grant the bail, wherein the case was dragged on for five years and bail was not granted. The Hon’ble Supreme Court allowed the bail to all while the trial was pending before Sessions Judge. In the case of Pearl versus The State, reported in 2005 YLR 358 bail was granted on the ground that trial was not concluded within six months in compliance of the directions of this Court.

In the like circumstances, in the case of Anwar Ali and another versus The State reported in 2002 P.Cr.L.J. 186, a Division Bench of this Court has been pleased to observe as under :-

“A charge has to be framed within a reasonable period. In this case as is apparent from the case diaries it took the trial Court two years to frame a charge. Even if an accused is charged with indulgence in activities which are not approved by the society, the society which claims to be looking after the law and order situation and as custodians of law should follow the law in toto, such delay tantamounts to negligence and defeats the very purpose behind which civilized societies pride themselves having a legal order which serves as a shining examples to others.”

“The administration of justice requires that a matter should proceed and be adjudicated expeditiously. If an accused deserved to be hanged for the offence alleged against him, he should be tried without unreasonable delay and executed. It would not be just from any angle of administration of justice that in a case where only two or three witnesses are to be examined, first the accused may be left to languish in jail for years and thereafter try and execute him.”

We are in agreement with the observations of the Division Bench of this Court in Anwar Ali’s case (supra). Furthermore, it is well settled principle of law that the statement of the abductee should be given proper weight while deciding the matter of kidnapping for ransom. The abductee, namely, Santosh Kumar, who is star witness and the only abductee, has sworn affidavit not only in trial Court but in this Court as well and has exonerated the applicant. Under these peculiar facts and circumstances of the case, we are of the humble opinion that the learned Counsel for the applicant has succeeded in making out a case for grant of bail. In consequence thereof we are inclined to grant bail to the applicant subject to furnishing the solvent surety in the sum of Rs.500,000/- with P.R bond of like amount to the satisfaction of learned trial Court. Order accordingly.

JUDGE