ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl. Bail Appln. No.D-793 of 2008.

Crl. Bail Appln. No.D-266 of 2009.

Date of hearing

ORDER WITH SIGNATURE OF HON’BLE JUDGE

27.7.2009.

For hearing.

Mr. Ali Nawaz Ghanghro, advocate for applicant Muhammad Azim in Crl. B.A. No.D-793/08.

Mr. Habibullah G. Ghori, advocate for applicant Mashooque Alli Brohi in

Crl. B. A. No.D-266/2009.

Miss Rubina Dhamrah, State Counsel.

O R D E R.

KHALID ALI Z. QAZI, J.- By this common order we intend to dispose of the above-mentioned two criminal bail applications filed by applicants Muhammad Azim and Mashooque Ali Brohi respectively, seeking bail in crime No.04/2003, registered at Police Station Kamber, for offence punishable under Sections 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, 460, 148, 149, P.P.C read with Section 7 of Anti-Terrorism Act, 1997, after rejection of bail application by learned Special Judge, Anti-Terrorism Court-I, Larkana, vide order dated 22.12.2008.

2. The brief facts of the prosecution case are that complainant Ghulam Hussain Mugheri lodged F.I.R on 7.1.2003 at P.S Kamber alleging inter alia that he along with his father Haji Janib, brother Wazir Ali and relatives namely Muhammad Khan and Ghulam Hyder were watching T.V and the electric bulbs were glowing and at about 11.45 P.M (night) three unidentified culprits duly armed with K.Ks entered the house and overpowered the complainant party on show of weapons and demanded cash, gold and keys of the Almirahs, as such Haji Janib and Wazir Ali resisted, resultantly all the three culprits armed with K.Ks fired at Haji Janib and Wazir Ali who fell down. It is alleged that complainant party also noted two other culprits with guns standing at the door and due to cries of complainant party and gun reports, the villagers attracted, hence the culprits decamped away. The complainant party found firearm injuries on the persons of both Haji Janib and Wazir Ali and Janib died at the spot. Thereafter, the complainant left the above P.Ws over corpse of Haji Janib and shifted injured Wazir Ali to C.M.C Hospital, Larkana, for first-aid and leaving him, he went to police station Kamber and lodged the F.I.R that five unknown culprits entered their house with a view to commit dacoity and because of resistance they killed Haji Janib and caused injuries to Wazir Ali.

3. The police after registration of the F.I.R submitted the challan before the learned trial Court showing the present applicants and other accused in custody and trial Court then remanded them to jail.

4. Messrs Ali Nawaz Ghanghro and Habibullah G. Ghori, advocates, have argued the case on behalf of the applicants, while Mr. Nizamuddin Baloch, advocate, on behalf of the complainant and Miss Rubina Dhamrah, on behalf of State.

5. Learned advocates for the applicants have contended that the applicants/accused are in custody since 2003 and the trial has not been concluded and only the complainant has been examined so far. They further added that the names of the accused persons do not appear in the F.I.R, which was lodged more than 9 hours of the alleged incident. They further added that the applicants being neighbourers are well known to the complainant, therefore, they should have been named in the F.I.R by the complainant very easily. They further added that there was a joint recovery, which is not admissible under the law. They further added that the incident is alleged to have taken place during dark hours of night and source of identification disclosed in the F.I.R is electric bulb, but the memo of wardat does not disclose the availability of bulb at the place of wardat. They further added that the complainant and P.Ws have not given the descriptions and identification marks of the culprits in the F.I.R and 161, Cr.P.C statements. They further added that identification test was held after the delay of one month and 25 days of the alleged occurrence and further that after the arrest of applicants on 25.2.2003 joint identification test of applicants Muhammad Azeem, Mashooque Ali and co-accused Hazoor Bux was held on 1.3.2003 i.e. after the delay of five days of their arrest, in which they were identified. It is further added that the applicants are neither dangerous, nor desperate or hardened criminals and there is no criminal record against them. Learned advocates for the applicants placed reliance on the case of Safdar Ali versus The State (2000 P.Cr.L.J. 1761) and Hazar Khan versus The State (2008 P.Cr.L.J. 1210). They further added that the trial Court is lying vacant and there is no possibility for conclusion of the trial in near future.

6. Mr. Nizamuddin Baloch, learned Counsel for the complainant advanced the arguments, which have been adopted by Miss Rubina Dhamrah, learned State Counsel.

7. Mr. Nizamuddin Baloch contended that the offence has been committed in midnight when the accused persons entered into the house of complainant and brutally murdered the two innocent persons. Under the compelling circumstances, as explained in the F.I.R, the delay of nine hours in lodging the F.I.R has been fully explained in the contents of F.I.R itself. He further added that the applicants have filed the transfer application in this Court, wherein record and proceedings of the case from the trial Court were summoned and it has taken three years in deciding the matter about the jurisdiction of the trial Court. He further added that the main accused Hazoor Bux is a hardened and desperate criminal and co-accused Fida Hussain is also a desperate criminal and both had escaped away from the jail as well as from the Court premises during the course of their arrival before the trial Court. Out of them principal accused, namely, Hazoor Bux is confined at Karachi and facing inside trial at Central Prison, Karachi. Under the circumstances, the delay caused in the conclusion of the trial cannot be attributed to the complainant party, as on each date of hearing complainant party/P.Ws are attending the Court very regularly. He further added that since the Court is lying vacant, therefore, under the law he is inclined to move for transfer of the case to any other Court for expeditious disposal of the case. He further added that in view of Section 21(d) of Anti-Terrorism Act, 1997, the concession of bail cannot be extended to the applicants. He has relied upon 2009 P.Cr.L.J. 521 and 2009 P.Cr.L.J. 540.

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

9. From the perusal of the record and on the tentative assessment of the record, we find that the names of applicants/accused are not mentioned in the F.I.R, which was lodged after nine hours of the incident. The features or description/identification marks of the accused persons are not mentioned in the F.I.R. The applicants are in custody since last six years, as they were arrested on 25.2.2003, but their trial has not been concluded as yet and only the evidence of complainant has been recorded. Learned Counsel for the complainant, so also the learned State Counsel, could not controvert the contention of the learned advocates for the applicants that the delay in conclusion of the trial was not attributable to the applicants or anybody else acting on their behalf. The trial Court is also lying vacant.

10. The trial Court refused bail to the present applicants, inter alia, on the ground of absconsion of the co-accused from the jail and Court as they made their escape good when they were attending the Court in custody and co-accused Hazoor Bux is facing trial inside Karachi Central Prison in another case.

11. In our opinion, there are not valid reasons for refusing bail to the applicants. Keeping a person in custody without trial for more than 6 years and that too by a Court, which by law, is enjoined to conclude trial within days, is nothing but abuse of the process of law as well as of Court. Section 19(7) of the Anti-Terrorism Act, 1997, provides that the Anti-Terrorism Court shall proceed with the trial from day to day and shall decide the case within seven days. Sub-section (8) of Section 19 of the Anti-Terrorism Act, 1997, provides that Anti-Terrorism Court, shall not give more than two consecutive adjournments during the trial of the case, if the defence Counsel does not appear after two consecutive adjournments, the Court may appoint a State Counsel with at-least seven years standing in criminal matters for the defence of the accused from the Panel of advocates maintained by the Court for the purpose in consultation with the Government and shall proceed with the trial of the case.

12. 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 six 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).

13. 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.”

14. Under the peculiar facts and circumstances of the case, we are of the humble opinion that the learned Counsel for the applicants have succeeded in making out prima facie a good case for grant of bail on the ground of hardship.

15. In consequence thereof we are inclined to grant bail to the applicants, which is granted to them subject to furnishing the solvent surety in the sum of Rs.500,000/- each with P.R bond of like amount to the satisfaction of learned trial Court.

JUDGE