ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl. Bail Appln. No.D-396 of 2009.

Date of hearing

ORDER WITH SIGNATURE OF HON’BLE JUDGE

21.7.2009.

For hearing.

Mr. Habibullah G. Ghori, advocate for the applicant.

Mr. Nisar Ahmed G. Abro, State Counsel.

O R D E R.

KHALID ALI Z. QAZI, J.- Applicant Miandad Channo has requested for his release on bail in crime No.54/2001, registered at Police Station Mahi Makol, for offence punishable under Sections 302, 324, 148, 149,452, 337-H(2), P.P.C, after rejection of his bail application by learned Special Judge for STA, Larkana, vide order dated 10.6.2009.

2. The brief facts of the prosecution case are that complainant Abdul Ghani Chandio lodged F.I.R on 15.5.2001 at P.S Mahi Makol, alleging therein that about 4/5 years prior to this incident his brother Nizamuddin had married with Mst. Zarina daughter of Muharam Chano, resident of Village Jhinjh, Taluka Kamber, due to which one Miandad son of Umed Ali Chano (present applicant) and his relatives were annoyed and were issuing threats to kill Nizamuddin. Later-on, Miandad and his relatives shifted to Usta Muhammad, Balochistan and two years prior to the incident Miandad and others had attacked upon the village of complainant and such case was registered by the complainant side. However, the said dispute was settled between the parties on the intervention of headmen of the locality. On the night of incident i.e., on 15.5.2001, complainant alongwith his brothers, namely, Nizamuddin, Noor Ahmed, cousin Asghar Ali and Mst. Zarina wife of Nizamuddin were sleeping in their house alongwith other house inmates, electric bulbs were glowing, when at 12.15 a.m. (night) they woke up on some noise at the main gate of the house and on the light of electric bulbs they saw and identified that accused, namely, 1) Miandad armed with K.K., 2)Moula Bux alias Khasho armed with rifle, 3) Deedar, 4) Dhani Bux, 5)Muhammad Hashim, 6) Asghar, 7) Hadi Bux, 8) Barkat Ali alias Bago, 9) Meeral, 10) Saleh, 11) Abdul Rasool 12) Khuda Bux, all by caste Channa, armed with guns, residents of the Usta Muhammad, Balochistan, 13) Dosoo, 14) Haji Khan, 15) Najamuddin, all three by caste Channa, residents of Bundi Khan-ji-Wandh, Taluka Shahdadkot, armed with guns, 16) Taj Muhammad, 17) Nabi Bux, both by caste Channa, resident of Village Allahyar Mastoi, Taluka Mirokhan, 18) Aboo alias Ayoub Bhatti, resident of Village Jhinjh, Taluka Kamber, all three armed with guns, were standing. Accused Miandad first shouted to kill Nizamuddin and then he fired his K.K, accused Moula Bux alias Khasho fired his rifle and the accused persons having guns fired directly with the intention of murder, but the complainant, his brother Noor Ahmed and cousin Asghar fell on the ground and the fires hit complainant’s brother Nizamuddin, his niece Ghazala, Mst. Zarina wife of Nizamuddin and complainant’s nephew Murtaza. Ghazala and Murtaza raising cries fell on the ground. After that, on the cries of complainant party and fire shots, the villagers were attracted, upon which the accused persons took to their heels by making fires in the air and fled away. The complainant party then found Nizamuddin having through and through firearm injuries on waist and back, who had died. Mst. Ghazala was found having through and through firearm injury on right side of belly with its exit on left side of belly, who had also expired. Mst. Zarina was found having firearm injuries on her leg and had gone unconscious. The complainant then leaving the witnesses at the house with dead bodies and taking the injured persons along to police station approached the police and reported the matter to the above effect.

3. The police after registration of the F.I.R, arrested the applicant and sent up the case for trial.

4. Previously, the bail applications filed by the applicant were dismissed by the learned trial Court as well as by this Court and the bail application again filed before the learned trial Court in view of directions given by this Court in Crl. B. A. No.54/2007 vide order dated 20.3.2007 for conclusion of trial within 2 months, was also dismissed by the learned trial Court on 16.7.2007. In the meantime, co-accused Moula Bux was granted bail by this Court, therefore, the applicant repeated his bail application before the learned trial Court, which was again dismissed. After that, present bail application has been filed before this Court.

4. Mr. Habibullah G. Ghori, advocate, has argued the case on behalf of the applicant, while Mr. Nisar Ahmed G. Abro, on behalf of the State.

5. Mr. Habibullah G. Ghori, learned advocate for the applicant, during the course of his arguments stressed much on the ground of hardship being faced by the applicant towards delay in the conclusion of trial inspite of directions issued by this Court on 20.3.2007 to the trial Court to conclude the trial within 2 months. He contended that the applicant is in custody for a period of more than eight years, as he was arrested in June, 2001. He further contended that charge in the case was framed on 11.10.2003. He further added that after the directions given by this Court on 20.3.2007, the prosecution has only examined the two medical officers, namely, Dr. Sartaj Ahmed and Dr. Uzam Ali and after that the case is being adjourned without any progress. Mr. Ghori further added that the delay in conclusion of trial is not attributable on the part of applicant/accused and that the trial Court has failed to comply with the directions of this Court to conclude the trial within 2 months in letter and spirit.

6. The learned State Counsel, looking to the applicant’s eight years’ incarceration in jail, has frankly conceded to the grant of bail.

7. We have carefully considered the arguments advanced by the learned Counsel for the parties and perused the material available on the record.

8. From the perusal of the record, we find that till date the applicant has remained in jail for a period of more than eight years, but the trial has not been concluded. The record further reflects that this Court while disposing of Crl. Bail Appln. No.54/2007 vide order dated 20.3.2007 had specifically directed the learned trial Court to conclude the trial, but the order of the learned trial dated 10.6.2009 dismissing the bail application of the applicant/accused reveals that after the directions only two medical officers have been examined and no other significant progress has taken place.

9. In our opinion, there are not valid reasons for refusing bail to the applicant. Keeping a person in custody without trial for more than eight years, is nothing but abuse of the process of law as well as of Court. It is well settled principle of law, that delay in trial, particularly when it amounts to abuse of process of law or of Court, has always been recognized as a ground for the grant of bail. Access to justice has been recognized as a fundamental right. It is right of every accused to stand trial within a reasonable time. It is proverbial that justice delayed is justice denied. Therefore, in our thinking, inordinate and scandalous delay in trial, which in the present case is more than eight long years, is not only abuse of the process of law and of Court, but violation of fundamental right of access to justice as well. Reference can be made to the case of Mahram Ali and others versus Federation of Pakistan & others (PLD 1998 S.C 1445) and Shaikh Liaquat Hussain versus Federation of Pakistan (PLD 1999 SC 504).

10. In the like circumstances, in the case of Hazar Khan versus The State, reported in 2008 P.Cr.L.J. 1210, bail was granted to the accused, who was in custody for six years and his case was not concluded. Similarly, 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.”

11. Under the peculiar facts and circumstances of the case, we are of the humble opinion that the applicant has prima facie a good case for grant of bail on the ground of hardship.

12. In consequence thereof we are inclined to grant bail to the applicant, which was granted to him 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, by short order passed on 21.7.2009 and above are the reasons in support thereof.

JUDGE