2018 PLP 77 (YLRN)

KHADIM HUSSAIN TUNIO, J.

Through this common order, I propose to dispose of captioned applications for grant of bail as same are outcome of same FIR hearing No.142 of 2014.

2. Succulently, the facts of the prosecution case are that on 30.12.2014, at about 01:50 p.m., at the Otaq of applicant Ihsan Ahmed situated in Deh Metahar, complainant Baia Muhammad along with his brother Noorullah, Muhammad Alim and Haji Thahrio were available for taking lea can the invitation of applicant Ihsan, where applicants namely Ihsan Ahmed, Sultan and Farooque with co-accused Abdul Jabbar. Imdad and one unidentified person were sitting in the Otaq. After taking tea. accused persons went home and brought guns and K.Ks, aiming their weapons upon the deceased Noorullah and declared him as Karo. Applicant Ihsan fired from his KK upon deceased Noorullah, in the meantime, applicant Sultan and Farooque with co-accused Abdul Jabbar also tired with K.Ks, directly upon the deceased Noorullah. with the intention to commit his Qatal, the bullets directly hit him, who after receiving tire arm injuries/fell down. 'Thereafter, all the applicants and co-accused fled away from the scene. Thereafter, on 31.12.2014, at around 01:50 p.m. the complainant recorded the FIR after the funeral of the deceased.

3. Learned Counsel for the applicants submits that the applicants are innocent and have been falsely involved in this case by the complainant party; that all the witnesses are close relatives and deeply interested in the prosecution case; that applicants namely Sultan and Farooque were found innocent by the Investigating Officer and their names were placed in Column No.2 of the challan, but learned Magistrate while taking cognizance issued NBWs against them; that there is delay of three days in lodging of the FIR, hence false implication of applications after due consultation cannot be ruled out at this stage; that applicant Ihsan was arrested by the police on 11.01.2015 and till this day is behind the bars; that soon after the incident, complainant obtained a letter (lash chakas form) for the post mortem and after postmortem and observing funeral ceremony of the dead body, went to police station where he reported. the matter though there was sufficient time with the complainant to register the FIR, but he failed to do so. After the arrest of applicant Ihsan, not a single incriminating article was recovered from his possessions which may connect him with this crime; that applicants Ihsan and Farooque and co-accused Abdul Jabbar all fired at the deceased, hence it would be determined at trial; that which shot was fatal and caused the death of the deceased; that majority of the co-accused persons have been let off during the course of investigation, which facts make the case of prosecution of two versions; that the applicants namely Sultan and Farooque after grant of interim relief were attending the learned trial Court regularly for a period of about 4/5 months and never misused the concession of bail; that the case has been challaned as such, the applicants are not required for investigation purpose; that it is the tendency of area to involve as many as innocent persons along with actual culprits just to settle the account of their enmity; that when the NB Ws were already converted into B.Ws by this Court then there was no need to cancel the pre-arrest bail of applicants namely Sultan and Farooque; that the case of applicants requires further inquiry as contemplated under subsection (2) of section 497, Cr.P.C.; that co-accused Imdad has already been granted post-arrest bail by this Court; that police after registration of FIR thoroughly investigated the case, recorded 161, Cr.P.C. statements of independent witnesses and came to conclusion that applicants are innocent, hence case of prosecution has become of two versions, which one is correct, it is yet to be determined at trial, that there is inordinate delay in conclusion of trial and such delay is attributed on the part of complainant party; that expeditious trial is right of every accused which cannot be denied to the present applicants. He has cited case-law reported as 1998 SCMR 01, 2004 PCr.LJ 1843, 2005 MLD 1267, 2016 YLR 2671, PLJ 2013 73, 2010 SCMR 966, 1995 SCMR 1765, 2016 PCr.LJ Note 73 and unreported authority Cr.B.A.No.S-552 of 2015, Re: Abdul Wahid v. The State, Cr.Misc.A.No.S-105 of 2010, Re: Loung Khan and others v. The State, Cr.Misc.A.No.S-111 of 2015, Re: Muhammad Afzal and others v. The State and Criminal Petition No.105-K of 2002.

4. As against this, Learned APG opposed the bail application of applicants. While Messrs Shafi Muhammad Mahar and Gul Muhammad Mahar argued that names of applicants are disclosed in the FIR with specific role; that the bail of applicant Sajjad Ahmed was dismissed as withdrawn on 24.08.2015; that the bail application filed on behalf of applicant Sajjad Ahmed is not maintainable at law; that police opinion regarding innocence of applicants Sultan and Farooq is not binding upon the court; that the delay in conclusion of trial is attributed to the applicants as in this case charge against the accused persons was framed on 01.03.2016 and the matter adjourned to 16.012016 for evidence. on 16.03.2016. 14.04.2016. 25.08.2016 and 01.09.2016 the complainant \vas in attendance but the learned counsel for applicants was called absent, as such, matter was adjourned; that the delay if any is not attributed on the part of complainant party, hence he prayed for rejection of bail application.

5. Having heard and perused the relevant record carefully with their assistance.

6. On perusal of case papers, it appears that applicants are nominated in the FIR with specific allegations; that the applicants along with co-accused had allegedly committed murder of deceased Noorullah. This fact finds support from the statements of prosecution witnesses recorded under section 161, Cr.P.C. Nothing has been brought on record that prosecution witnesses have any ill will or grudge against the applicants, which prima-facie shows involvement of the applicants in this case of serious and heinous in nature and the punishment for offence with which present applicants are booked falls under the o prohibitory clause of section 497, Cr.P.C.

7. Applicants also seek bail on the ground of statutory delay in conclusion of trial, therefore, I have gone through the newly amended provision in section 497, Cr.P.C., which o contemplates that where court is of the opinion that delay in trial of the accused has not been occasioned by an act or omission of the accused or any person acting on his behalf, direct that such accused persons be released on bail, who is accused of an offence punishable with death, has been detained for such offence for continuous period exceeding two years and trial has not been concluded provided that the above benefit will not be available to a previously convicted offender for an offence punishable with death or imprisonment for life. As far as the delay for non conclusion of trial within a period of two years is concerned, it is to be noted that on 16.03.2016, 14.04.2016, 25.08.2016 and 01.09.2016 although prosecution witnesses were present in court for recording of evidence but case could not be proceeded on account of non-availability of defence counsel or adjourned at the request of defence counsel. As per case diaries of trial court available on record, which shows that defence was responsible for causing delay in finalization of trial within the period of two years. The intention of law is to see that whether finalization of the trial has taken place on account of the delay caused by the defence. In the case of Akhtar Abbas v. The State reported in PLD 1982 SC 424, adjournments were sought on eight occasions and it was observed that all that is necessary to be seen whether the delay in finalization of the trial has, in any manner, been delayed by an act or omission on the part of the prosecution or defence. In the case in hand, delay was partly attributed to the applicants, which was clear Vifrom the diary sheet of the trial Court. Again in another case of Muhammad Younis v. The State reported in 1995 SCMR 1087, it was held that the defence on four occasions had requested for adjournment and the accused, therefore, was not entitled to concession of bail. Also in the case of Javid-ur-Rehman another v. The State reported in 2010 SCMR 1744 although on one date, prosecution witnesses were present in Court but counsel for accused did not appear for recording of evidence, bail was refused by 1-Ion'ble Supreme Court.

8. It is settled proposition of law that in criminal administration of justice, each case has to be decided on its own facts and circumstances and Courts are required to exercise jurisdiction independently. Reliance in this respect is placed on a case of The State v. Haji Kabeer Khan reported in PLD 2005 Supreme Court 364 and in case of Muhammad Faiz alias Bhoora v. The State and another reported in 2015 SCMR 655, it has been held as under:-- "S. 497(2)

Bail

Case-law cited by counsel for accused in support of bail--Relevance

Precedents in bail matters were of no help to a party, as it varied from case to case depending upon the facts of each case

Court had to examine as to whether accused had made out a case of further inquiry or not."

9. In another case of Farrukh Qadri v. State (2006 PCr.LJ 1256), it has been held by this Court as fallows: "The narration of the facts, depicting the picture of attendance of witnesses in the year 2005 shows that they were present on 10 dates and it is not difficult to visualize that these were not the only dales when they appeared and case did not proceed and, therefore, they lost patience and discontinued to appear before the Court. The prosecution and defence are not supposed to test patience of the witnesses and when they lose it then start claiming concession. The benefit can be sought only if the witnesses fail to appear in order to cause the delay and extend the incarceration of the accused person in jail." "When the 3rd and 4th proviso to section 497, Cr.P.C. were on the Statute Book, this point was considered by several superior Courts. Pre-dominant view was that if the witnesses appeared on several dates and were not examined, their subsequent absence, shall not justify the release of accused on bail as a matter of right and same principle is still applicable when the bail is not be granted as a matter of right but can be considered on the ground of inordinate delay in disposal of the case. "I would also like to observe that generally the trial Courts appear to be totally oblivious of the provisions contained in section 540-A, Cr.P.C. and, therefore, are not resorting to this provision, in any case, which was inserted to meet the eventualities as in this case. It appears that the learned Advocate for the complainant and prosecutor, as well as the learned defence counsel .failed to assist the Court and never made a request that if one or two accused were not produced on any particular date, while other accused persons were present before the Court and the witnesses were in attendance, and the accused who were not produced before the Court were represented through the Advocate the case could be proceeded with. I am of the opinion that the trial Court, prosecutor, Advocate for the complainant and the defence Advocates have equally contributed in causing delay in disposal of the case and perpetrating the agony on the accused as well as prosecution witnesses. This state of affairs cannot he termed as satisfactory by any stretch of imagination. The system of law can work properly if all the stake-holders perform their duty properly and with due diligence. Be that as it may, the entire responsibility for delay cannot he saddled on the shoulder of prosecution witnesses, therefore, I am of the opinion that the applicant is not entitled to he released on bail. The bail application stands dismissed accordingly."

10. For the above stated reasons, criminal bail applications are dismissed. However, trial Court is directed to decide the case within a period of three months time its compliance report be submitted to this Court through learned Additional Registrar for perusal.

11. As far as case law referred by learned counsel for applicants at Bar are; riled, the same have been perused and considered but the same are distinguishable the facts of the case in hand.

12. Needless to mention here that the observations made hereinabove are tentative in nature and would not influence trial Court while deciding the case of applicants/accused on merits. WA/I-26/Sindh Bail refused.