ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl. Bail Appln. No. 123 of 2008.

Date of hearing

Order with signature of Hon’ble Judge

22.04.2008.

Mr. Ali Murad Abro, Advocate for applicants.

Mr. Nisar Ahmed Abro, State Counsel.

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Bail application is moved on behalf of applicants, namely, Mehar and Abdul Haq both sons of Lal Bux Jagirani, in crime No. 70/2002, P.S Dhamrah, offences under section 302, 147, 148, 149 P.P.C.

Brief facts of the case are that complainant Arbab Ali recorded F.I.R at P.S Dhamrah on 06.10.2002, stating therein that his niece, namely, Mst. Tajul was given in marriage to one Abdul Haq Jagirani, having four children from his wedlock and at the time of recording of the F.I.R she was said to be pregnant about 8-9 months. Further case of complainant is that Abdul Haq’s maternal nephew, namely Manzoor Ali forcibly abducted Mst. Imdad Khatoon maternal niece of complainant and such F.I.R was registered with same police station as Crime No. 13/ 02 under section 11/16 Offence of Zina (Enforcement of Hudood) Ordinance 1979 and that case was challaned, as such Abdul Haq and others were pressing the complainant party to withdraw from aforesaid case, otherwise they will suffer at large, as such on the date of recording of the F.I.R his brother Muhammad Saleh, Pehliwan (nephew), and Abdul Rehman were sitting on the shop of his nephew. At about 13.15 hours accused, namely, Abdul Haq, Mehar Ali armed with Kalashnikovs, Darya Khan, Mour, Deedar armed with pistols, while Haji Mahboob, Raza Muhammad and Qurban Ali having guns in their hands came there and accused Abdul Haq abused them by saying that they had told them to withdraw the case but they are still pursuing the same, in the meanwhile accused Mehar fired from his Kalashnikov at Abdul Rehman, as a result of the fire he fell down on the ground, while other co-accused fired in air. Further case of the complainant is that accused Mehar instigated his companions that they should go and murder Mst. Tajul in her house, as such accused Abdul Haq, Darya Khan, Mour and Deedar went to the house of Mst. Tajul while remaining accused stayed over the complainant party, in the meanwhile firearm reports were heard from the house of Mst. Tajul and after firearm reports above named accused came back by raising slogans and accused Abdul Haq disclosed that he has committed the murder of Mst. Tajul. Thereafter, all the accused ran away after firing in air. Complainant party saw Abdul Rehman, he was found lying dead on the ground having injuries on his chest. Thereafter they went to house of Mst. Tajul, and saw that she was lying dead. Where witnesses Raza Muhammad and Mithal were present, who informed the complainant party that accused Abdul Haq, Darya Khan, Mour and Deedar came armed with weapons and Abdul Haq fired from his Kalashnikov and killed her and thereafter by firing in the air left the house. The motive behind the offence was that prior to this incident there was enmity between the parties over matrimonial affairs. However, after usual investigation police challaned the case. Prior to this bail application was submitted on behalf of applicant Mehar, but same was rejected on 24.5.2006, by learned V-Additional Sessions Judge, Larkana. Bail application on behalf of applicant Mehar was also moved before this court, but same was also dismissed with direction to the trial court to expedite the trial and conclude preferably within a period of six months, vide order dated 28.08.2006. Bail application for present applicants was repeated, but the same was rejected vide impugned order dated 08.03.2008, by the court of learned V-Additional Sessions Judge, Larkana, as such present bail application on the ground of hardship has been moved.

Heard Mr. Ali Murad Abro learned counsel for applicants, Mr. Nisar Ahmed Abro, learned State counsel and perused the material available on record.

Mr. Abro at the very outset requested for grant of bail to the applicants only on the ground of hardship and stated that applicant Abdul Haq was arrested on 13.10.2002, whereas Mehar Ali was arrested on 29.07.2005, and both are behind the bars but trial court has failed to conclude the trial and even no charge has been framed. He further argued that delay in conclusion of trial is not on the part of present applicants, and they cannot be put in jail for an indefinite period without trial, as such they are entitled for concession of bail on the ground of delay/ hardship. He further states that not only this but on 28.08.2006, directions were also issued by this court to conclude the trial within a period of six months, but matter is still pending without any progress as stated above. Learned counsel for applicants referred to a case of Punhal and 02 others (2004 P.Cr.L.J-90), Wazir Ali (2005 PLD-201), Haji Tahir vs. the State (SBLR 2007 Sindh-951), Aligul vs. the State (SBLR 2007 Sindh-1014). So also an unreported order dated 26.2.2008, in case of Hazaro alias Nazar Muhammad vs. the State as Crl. Bail Appln. No. 244/2007.

On the other hand leaned State Counsel did not oppose the grant of bail on the ground of hardship and admitted that no charge has been framed nor any witness has been examined and applicants are behind bar w.e.f. 13.10.2002 and 29.07.2005 respectively. He has further stated that apart from above the parties had patched up their differences and land has been transferred in favor of legal heirs of deceased but compromise was not finalized as one of the legal heir made an application that his L.T.I was obtained on white paper.

From record it appears that incident had taken place on 06.10.2002 at 13.15 hours, whereas F.I.R was recorded on 06.10.2002 at 1400 hours, and no charge has been framed and matter is pending decision without progress, though applicant Abdul Haq was arrested on 13.10.2002, whereas Mehar Ali was arrested on 29.07.2005, since then they are behind the bars and delay has not been attributed to applicants nor they are responsible for delay of any kind on their part. It is settled law that accused involved in a criminal case have a fundamental right to have a fair trial within a reasonable time, a person cannot be detained for unlimited period and inordinate or unjustified delay in the prosecution of the case did amount to an abuse of due process of law though crime be heinous in nature and the act of the accused be condemnable. Expeditious trial is the basic right of an individual and such right cannot be over looked or denied and criminal case specially should be disposed of without unnecessary delay, as delay causes erosion of public confidence in the judicial system and also creates a sense of helplessness and despair and feeling of frustration and anguish.

The law referred by the learned counsel for the applicants is so relevant, mostly having similar circumstances, even on a better footing, because charge has not been framed in the present matter. Not only this but directions issued by this court even have not been complied with and that directions were issued a long long back on 28.08.2006. In the cases referred above, the benefit of bail was extended to the accused on the similar facts and grounds. In the case of Aligul vs. the State (SBLR 2007 Sindh 1014), benefit of bail was extended to accused, when the direction of this court were not complied with.

Looking to the aforesaid circumstances and keeping in view that the applicants are behind the bars since 13.10.2002, and 29.07.2005, respectively, and even charge has not been framed as yet, I feel that learned counsel for applicants has been able to make out a case for grant of bail on the ground of hardship, which is extended to the applicants and they are admitted to bail on furnishing solvent surety in the sum of Rs.200,000/- (Two lacs) each and P.R bond in the like amount to the satisfaction of trial court. Above are the reasons for short order dated 22.04.2008, whereby applicants were admitted to bail.

Judge