For hearing
08.4.2008.
Mr.Maqbool Ahmed Awan for the applicants.
Mr.Muhammad Iqbal Memon for the State.
DR. RANA MUHAMMAD SHAMIM, J. The applicants have assailed the impugned order of the learned trial court dated 27.02.2006 whereby the bail was refused to the applicants.
2. Brief facts of the prosecution case are
that on 18.l2.2005 complainant Mehboob Ali recorded FIR alleging therein that
deceased Mohammad Soomar was his uncle and about five years back, accused Akram
Bihan and Mehboob alias Makan Bihan had committed zina-bil-jabr upon
Mst.Shabana Mirbahar (sister-in-law of deceased Mohammad Soomar). Such case was
registered at P.S. wherein deceased Mohammad Soomar was complainant. Accused
Akram, Mehboob and others were convicted by the Court, whereupon they were
annoyed with the deceased Mohammad Soomar and they used to extend threats of
dire consequences. On 18.12.2005 complainant along with deceased Mohammad
Soomar had come at Salehpat town for some personal work and when they reached
near primary school of village Bargah at about 4-45 p.m. a jeep bearing
registration No.7700 came from Salehpat side. Accused Dost Mohammad, Ghulam
Shabir, Akram, Mehboob alias Makann, Akhtiar (applicant), Auchar, Rashid
(applicant) and Khuda Bux, duly armed with pistols were in the jeep. Accused
Dost Muhammad challenged deceased Mohammad Soomar that he would not be spared
today and saying so, he fired upon Mohammad Soomar hitting him on his face, who
fell down. Rest of the accused persons also fired upon deceased. Consequently,
accused persons ran away from the scene of offence.
3. Learned advocate for the applicants
submits that the applicants are innocent and have falsely been implicated due
to admitted enmity; that as per FIR, the alleged firearm made by the accused
Dost Muhammad hit at the chin of the deceased and Dost Muhammad has been
granted bail by this court vide order dated 24.3.2008; that 161 CrPC statements
of the witnesses were recorded after two days of lodging of the FIR which also
contradict the version of the complainant recorded in the FIR; that in the
enquiry conducted by SIP-Eidan Khan Bhutto of Crime Branch Sukkur, it was found
that the murder of deceased was committed by his caste-fellows Hussain Dino and
others and not by the present applicants; that the applicants are in custody
since 18.12.2005 without trial which amounts to conviction before judgment;
that no specific role has been assigned to the applicants and the allegations
against them are of general in nature; that there is no reasonable ground to
believe that the applicants have committed a non-bailable offence as alleged
but there exist sufficient grounds for further enquiry into his guilt. In
support of his above contentions, he has relied upon a case of co-accused in
Cr.B.A. No.60/2007 and case of Muhammad Fazal alias Bodi v. The State (1979
SCMR 9) and case of Ghulam Abbass alias Abasi and others v. the State (PLD 2005
Karachi 255) and submits that the applicants be granted bail on the principle
of consistency and on inordinate delay.
4. Learned State counsel opposed the grant of
bail to applicant on the ground that there is specific role attributed to the
applicants as appears from the impugned bail order.
5. I have heard learned counsel for the
applicants, learned State counsel, gone through the material available on case
file and case laws. Admittedly there is no specific role assigned to the
applicants in F.I.R and statements of prosecution witnesses in their statements
recorded under Section 161 Cr.P.C. The allegation, if any, of making direct
firing was against co-accused. The allegation against the applicants is vague,
ill-founded and general in nature. Admittedly statements of prosecution
witnesses were recorded after delay of two days without any plausible
explanations.
6. The applicants are in custody since
18.12.2005 without trial. The inordinate delay in prosecution case as ground
was acknowledged as the statutory right by Legislature, but for the best known
wisdom same had been withdrawn. The inordinate delay, however, had always been
conceded by the Hon’able Apex Court even when provisions regarding the
statutory delay was not available on Statue book and/or even in some cases
where such restriction was imposed, the Court conceded bail on the ground of
undue delay. The delay in each case is to be adjudged and weighed on its own
merits. Inordinate delay if not explained, would amount to abuse of the process
of law even in cases of capital punishment where prosecution was loath to
submit challan, slow in producing witnesses, failed to produce the accused
without any justification and/or delaying tactics were used by persons other
than accused including complainant. If the delay was so shocking and scandalous
it would amount to abuse of process of law. The refusal of bail is not
justified where on the allegation that he has committed offence punishable with
death or transportation for life unless reasonable grounds appear to exist to
disclose the complicity in the alleged offence. The ultimate conviction and
incarceration of a guilty person can repair a wrong caused by a mistaken relief
given by the court, but no satisfactory reparations can be offered to an
innocent person for an unjustified incarceration at any stage of case albeit
his acquittal in long run.
7. In view of above discussion, in my humble
view the learned counsel for the applicants have succeeded in making-out the
case of the applicants of further enquiry, which entitles them for the grant of
the concession of bail. Accordingly, bail is grated to the applicants for
furnishing solvent surety in the sum of Rs.2,00,000/- each and PR bond in the
like amount each to the satisfaction of trial Court.
JUDGE,
N.M.