2009 PLP 1108 (YLR)

FARRUKH ZIA G. SHAIKH, J.

Applicant Ayaz Ali son of Niaz Ali by caste Shaikh has filed this application under sections 497/498, Cr.P.C. seeking bail, who is required in F.I.R. Crime No.4 of 2004 registered at Police Station, `A' Section, Khairpur for an offence under sections 302,34,337-H(2), P.P.C. and 13(d) Arms Ordinance. Succinctly, the prosecution story as narrated in the F.I.R. is that, the case was initiated on an F.I.R. lodged at the instance of complainant Ali Gul son of Muhammad Saleh by caste Shaikh on 29-1-2004 stating therein that deceased Nawab Ali Shaikh aged about 55 years was his elder brother. Namely Khalid Shaikh and others are their caste-fellows and there is an old enmity going on between them. In the morning deceased Nawab Ali went to Hamza Masjid Sharif to offer prayers. Complainant, his brother Gul Baig and nephew Aijaz Ali came out of the house for labouring purpose and when reached at the door, they saw deceased Nawaz Ali reached at the door of the Masjid and accused Khalid alias Khaloo, Ayaz Ali (Applicant), Ali Muhammad armed with pistols, whereas Khadim armed with Kalashnikov while Ghulam Muhammad alias Ghulamoo and Shafi Muhammad empty-handed, accosted, saying that, he will not be spared. On the instigation of accused Ghulam Muhammad and Shafi Muhammad, accused Khalid, Ayaz (Applicant) and Ali Muhammad fired at deceased Nawab Ali, which hit him on his left side over flank and was through and through from right side flank, another fire-arm injury below left ribs on abdomen and was through and through from side ribs and on the left ear and was exited from backside neck and died in their sight. Hence the F.I.R. lodged. Mr. Ghulam Shabeer Dayo, learned counsel appearing on behalf of the applicant, has moved bail plea on the ground of hardship and delay. He has contended that the applicant is innocent and has falsely been implicated in the case due to enmity; that the applicant is continuously rioting in Jail custody since 5-4-2004, but the trial has not yet been concluded, which is great hardship; that despite twice directions issued by this Court to procure the attendance of the witnesses and to examine them within a period of two months, even then the learned trial Court has only recorded evidence of one P.W. Ijaz Ali and Doctor. He has submitted that a fair and speedy trial is the fundamental right of an accused and no one can be confined in Jail custody for an indefinite period and that since the trial has not yet been concluded, whereas the applicant is confined in Jail custody for the last about more than four and half years, in such circumstances, the applicant is entitled for the concession of bail on the hardship. In support of above contentions, he has relied upon Imran Khan alias Rami v. The State (2000 YLR 267) and UC of this Court in Cr. B A.No.586 of 2008 Re-Abdul Karem and another v. The State. Though on the other hand, Mr. Agha Ather Hussain, learned Assistant Advocate-General Sindh appearing on behalf of the State, has opposed the Application, but has not been able to controvert the contentions raised by the learned counsel for the applicant. I have heard the arguments of Mr. Ghulam Shabeer Dayo, learned counsel appearing for the applicant as well as Mr. Agha Ather Hussain, learned Assistant Advocate-General appearing for the State and with their assistance I have also perused the material available on record. This bail application is pressed mainly on the ground of hardship and delay. It has been noticed that in this case, the applicant is behind the bars since last more than four and half years, but, inspite of specific direction issued by the Court twice, the trial Court has failed to conclude the trial. Such a long delay in conclusion of trial by itself, will be an abuse of the process of the Court as the fair and speedy trial is the fundamental right of the applicant and no one can be detained in Jail for an indefinite period. In this respect, the law referred to above, fully supports the case of the applicant. For what has been discussed above, I am inclined to accept this application and admit the applicant to bail, subject to furnishing surety in the sum of Rs.200,000 (Rs. two lac) only and P.R. Bond in the like amount to the satisfaction of the trial Court. Bail application stands disposed of. H.B.T./A-179/K Bail granted.