2012 PLP 1726 (MLD)

MUHAMMAD ALI MAZHAR, J.

The applicant has applied post-arrest bail in Crime No.18 of 2010 lodged at Police Station, Abad, Sukkur under sections 302, 342, 337-H (2) and 34, P.P.C.

2. Succinctly, facts of the prosecution case are that on 9-2-2010, complainant Azizullah Jatoi lodged the F.I.R. that he is Govt. servant and deceased Muhammad Shoaib was his younger brother. On 8-2-2010, when complainant returned from his duty, he was told that children of Zulfiqar Ali had quarrelled with their children. Complainant along with his brother Shoaib went to the house of Zulfiqar Ali for complaining the matter on which accused Zulfiqar Ali, Sikandar Ali, Maqsood and their servant Ghulam Murtaza came out. Accused Zulfiqar Ali having a repeater and Sikandar Ali having a pistol. Accused dragged his brother Muhammad Shoaib by his arms and accused Zulfiqar Ali with his repeater made a straight fire upon Shoaib to kill him. Sikandar made aerial firing. Complainant raised cries which attracted Nisar Ahmed and Ahsanullah who also came. Seeing them, all accused went away. The complainant saw that Shoaib sustained fire arm injuries at the left side of abdomen, blood was oozing and he was found dead.

3. The applicant applied for bail but the same was dismissed by learned trial court. Thereafter, he moved bail application in this court which was also dismissed vide order dated 2-6-2011 with the directions to the learned trial court to record the evidence of material witnesses within a period of six months and thereafter the applicant shall be at liberty to move a fresh bail application. The applicant moved bail application in the trial court on the ground of statutory delay so also on medical ground, but the same was dismissed vide order dated 21-2-2012.

4. The learned counsel for the applicant argued that the F.I.R. in question was lodged on 9-2-2010 and the applicant was arrested on 24-2-2010 and after a long delay, charge-sheet was submitted on 24-8-2010 despite this protracted trial, the trial could not be concluded and the applicant is behind the bar for the last more than two years. He further argued that the applicant is a patient of Hepatitis-C and his proper treatment is not possible in the jail premises, hence he is entitled to be released on bail not only on the ground of statutory delay but also on medical ground. He further argued that no delay has been caused by the applicant to the trial and in fact it was the complainant who became instrumental in the delay and in order to prolong and drag the trial, he filed an application under section 193, Cr.P.C. for implicating other accused persons and this application remained pending for a long time and thereafter the complainant simply not pressed this application, which shows his mala fide intention and ulterior motive that he wants to drag the proceedings so that the applicant shall remain behind the bars for an unlimited period. In support of his arguments, the learned counsel relied upon the following case-law:-- (1) 2012 SCMR 354 (Shabeer v. State). In this case, the hon'ble Supreme Court considered the amendment made under section 497, Cr.P.C., whereby the right to seek bail on statutory ground was restored. The hon'ble Supreme Court observed that accused was arrested on 14-11-2007 and since then he had been in custody. Despite framing of charge on 29-7-2008, no proceedings had been concluded nor there was any reasonable possibility of conclusion of trial in near future, hence the applicant in that case was granted bail. (2) 2012 SCMR 552 (Muhammad Jameel Rahi v. D.G. NAB and others). In this case also, the question of delay was considered and it was held that the accused was behind the bars for last more than 28 months and during that period, out of 416 prosecution witnesses only 150 witnesses had been examined and conclusion of trial in near future was not in sight. Nothing was available on record to indicate that accused was in any manner, responsible for the delay nor it had been alleged by prosecution, therefore, in this case also bail was allowed. (3) 2011 PCr.LJ 1910 (Taj Muhammad v. State). In this case also the ground of statutory delay was considered and the learned single Judge of this Court observed that case came up for hearing on so many occasions, but was not proceeded for hearing for one reason or the other, primarily because either accused persons were not produced or the court was vacant or there was strike. On majority of dates, the case could not proceed for no fault of accused or their counsel, therefore in the above circumstances, the accused was granted bail. (4) 2000 SCMR 212 (Abbas v. The State). In this case, the bail was granted on medical ground. A report was called about the health of accused and according to the report, he was suffering from Hepatitis-C Virus but the learned High Court did not consider him entitled to bail as in the opinion of medical board though the disease of the accused was infectious but it did not spread or infect others by causal contract. The hon'ble Supreme Court converted petition into appeal and observed that in view of the serious nature of ailment the petitioner was suffering from, he was admitted to bail to the satisfaction of the trial court.

5. On the other hand, the learned D.P.-G. argued that the delay was caused by the applicant as mostly the adjournment was sought by him or his Advocate. He further argued that so far as the disease of Hepatitis-C is concerned, this can be treated in the jail premises and the applicant is not entitled to be enlarged on bail. He further submits that though directions were given by this Court earlier on 2-6-2011 in Criminal Bail Application No.659 of 2010, whereby the bail application was dismissed with direction to the trial court to record the evidence of the material witnesses within a period of six months but the learned D.P.-G. submits that despite this direction not a single witness has been examined so far for which also he held the applicant responsible.

6. I have examined the case diaries submitted by learned counsel for the applicant in support of this application. It is a fact that applicant was arrested on 24-2-2010 and after a long delay, the charge-sheet was submitted on 24-8-2010, almost after lapse of six months. On 6-2-2010, the complainant moved an application under section 193, Cr.P.C. for joining two more persons Sikandar and Maqsood, who were let off by the police and shown in Column No.2 of challan. On 13-3-2010, notice was issued to the proposed accused on this application. After almost 15 dates, the aforesaid application was dismissed for non-prosecution on 18-9-2010 by the trial court.

7. After passing almost 18 dates, fresh application was filed by the complainant under section 193, Cr.P.C. on 20-7-2011, on which again, a notice was issued to the proposed accused which application remained pending for almost 13 dates and on 27-10-2011, the complainant did not press this application, which was dismissed by the trial court as not pressed. During pendency of aforesaid applications no progress was made in the trial and even no attempt was made to frame the charge.

8. On 1-11-2011, the charge was framed. It is clear from the aforesaid record that due to pendency of application under section 193, Cr.P.C., the trial court failed to proceed and even after dismissal of earlier application under section 193, Cr.P.C., the same complainant repeated fresh application which also remained pending for a considerable period of time and thereafter it was dismissed as not pressed. The delay consumed in the trial due to pendency of above application cannot be attributed to the applicant as due to pendency of above application, the trial court on its own not proceeding the case. I have further observed that almost 13 times, the applicant was not produced by the jail authorities in the court and this delay also cannot be attributed to the present applicant as he had no control if jail authorities failed to produce him as under trial prisoner in court. On few dates, the case was adjourned due to holidays and presiding officer was on leave but fact remains that despite numerous dates not a single witness has been examined and the directions given by this court in the earlier bail application became redundant due to non-recording of evidence of material witnesses. It is also a matter of record that few dates were sought by the applicant but the entire delay cannot be attributed to the applicant. I am fortified by the dictum laid down by the Hon'ble Supreme Court in the case of Shabeer (supra) wherein in the similar circumstances, the hon'ble Supreme Court granted bail to the applicant on the ground of statutory delay and held that despite framing charge on 29-7-2008, no proceedings have been concluded nor there is any reasonable possibility of conclusion of the trial in near future. In the case of Muhammad Jameel Rahi (supra), again the hon'ble apex Court granted bail and held that nothing is available on record to indicate that accused was in any manner responsible for the delay.

9. It is not the case of prosecution that the present applicant is previously convicted or desperate or hardened criminal as nothing has been alleged or argued in this regard. It is also a fact that vide order dated 10-5-2012, the applicant was referred to the Medical Superintendent GMC, Sukkur for medical examination and opinion. The report dated 18-5-2012 shows that he was referred to for some investigation with the direction to approach to the Director General Health Services Sindh at Hyderabad. Letter of Medical Superintendent, GMC Hospital Sukkur dated 18-5-2012 is available on record. The counsel for the applicant has submitted the report of Civil Hospital, Mirpurkhas which shows that the sample was collected on the reference of Ghulam Muhammad Mehar Medical Hospital, Sukkur and according to the report "Hepatitis-C Virus RNA" has been detected. Since report clearly shows that the applicant is a patient of Hepatitis-C and this report also showing the reference of Ghulam Muhammad Mehar Medical College Hospital Sukkur, therefore it is clear that no further medical board is required when "Hepatitis-C Virus RNA" is already detected. This report was not opposed or objected by the learned D.P.-G. In the similar circumstances, the hon'ble Supreme Court in the case of Abbas (supra) granted bail to the accused who was also a patient of Hepatitis-C. According to the website www.wikipedia.org . Hepatitis C is an infectious disease affecting primarily the liver, caused by the hepatitis C virus (HCV). The infection is often asymptomatic, but chronic infection can lead to scarring of the liver and ultimately to cirrhosis, which is generally apparent after many years. In some cases, those with cirrhosis will go on to develop liver-failure, liver cancer or, life-threatening esophageal.

10. As a result of above discussion, I have reached to an irresistible conclusion that the applicant is not only entitled to be released on bail on the ground of statutory delay but also on medical ground in view of serious nature of ailment. Consequently, this bail application is allowed. The applicant is granted bail subject to furnishing solvent surety in the sum of Rs.3,00,000 (Rupees Three Lacs Only) with PR bond in the like amount to the satisfaction of the trial court. Since it is an old matter, the learned trial court is directed to conclude the trial preferably within a period of four months. MWA/Z-8/K Bail granted.