ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl. Bail Appln. No.S-382  of   2009.

Date of hearing

ORDER WITH SIGNATURE OF HON’BLE JUDGE

17.7.2009.

For hearing.

Mr. Saeed Ahmed B. Bijarani, advocate for the applicant.

Mr. Nisar Ahmed G. Abro, State Counsel.

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                   Applicant Ali Anwar Khati/Kalhoro has moved this application for his bail in crime No.63/2002 of PS Naudero, for offence under Sections 302, 324, 34, P.P.C, who is facing trial in the Court of Additional Sessions Judge, Ratodero.

                   The brief facts of the prosecution case as per F.I.R lodged by complainant Ali Jan with Police Station Naudero on 1.8.2002 are that on the said date i.e. 1.8.2002 he was talking with Khair Muhammad Mirani near his house, when at about 12.30 night they heard fire report and cries of murder, murder being raised by Allah Bux and Ghulam Rasool Mirani from road side.  He and Khair Muhammad immediately rushed towards there and flashed torch, saw on torchlight that four persons fled away towards southern side from road, out of whom two persons were armed with guns, one with hatchet and one persons with a pistol and his son Allah Bux, aged about 25 years, was lying on the road.  Being empty-handed they could not follow the accused.  Ghulam Rasool disclosed to them that he and Allah Bux after taking tea from Pir Goth hotel were returning back towards house, four armed persons on their flashing torch challenged them and due to fear they returned back but the accused fired with their guns and pistols, which hit Allah Bux and he fell down.  The complainant saw that Allah Bux had sustained injuries on his foot, buttock, and back of head, blood was oozing out and he was unconscious.  They were removing injured Allah Bux to hospital for first aid but outside the hospital he died.  The complainant then went to PS and lodged the report.

                   On completion of investigation, case was challaned, which is now pending trial in the Court of learned Additional Sessions Judge, Ratodero.  The bail application on behalf of the applicant was moved, but the same was dismissed by the learned Additional Sessions Judge, Ratodero on 21.5.2008. Thereafter, applicant filed bail application No.369/2008 before this Court, but the same was dismissed as not pressed vide order dated 11.8.2008 with directions to the trial Court to conclude the trial within 04 months.  The trial Court failed to comply the directions of this Court and could not examine remaining P.Ws, therefore, a bail application was moved before the trial Court, but the same was again dismissed vide order dated 17.1.2009, hence this bail application.

                   I have heard Mr. Saeed Ahmed B. Bijarani, advocate for the applicant and Mr. Nisar Ahmed G. Abro, learned State Counsel.

                   Learned Counsel for the applicant states that fair and speedy trial is not only legitimate right of every under trial prisoner recognized under the criminal jurisprudence.  He further added that till today only complainant Muhammad Umar, PWs Ghulam Rasool, Khair Muhammad and mashir Nazir Ahmed have been examined by the learned trial Court and remaining witnesses are yet to be examined and will take time.  He further contended that applicant was arrested on 19.1.2003 and is languishing in jail since last more than 6½ years without further progress in the matter as remaining witnesses are yet to be examined.   He further added that on 11.8.2008 directions were issued by this Court to the trial Court to conclude the trial within 4 months, but the same order was not complied with by the learned trial Court so on the sole ground of non-compliance of orders passed by this Court applicant is entitled for concession of bail.  He further added that delay in conclusion of trial is neither attributed to present applicant nor his counsel acting on his behalf. 

                   Mr. Nisar Ahmed G. Abro, learned State Counsel, raised no objection on the grant of bail to the applicant keeping in view the fact that despite directions of this Court on 11.8.2008 to conclude the trial within 4 months, the learned trial Court has failed to comply with the said directions.

                   I 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 Abrar 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.”          

                   I am in agreement with the observations of the Division Bench of this Court in Anwar Ali’s case (supra).  Under the peculiar facts and circumstances of the case, I am of the humble opinion that the learned Counsel for the applicant has succeeded in making out a case for grant of bail on the ground of hardship. 

                   In consequence thereof I am inclined to grant bail to the applicant, which was granted to him subject to furnishing the solvent surety in the sum of Rs.300,000/- with P.R bond of like amount to the satisfaction of learned trial Court by a short order passed on 17.7.2009.  Above are the detailed reasons in support thereof.

                                                                                                JUDGE