2007 PLP 1477 (YLR)

SYED ZAWWAR HUSSAIN JAFFERY, J.

The applicants named above are facing trial along with other co-accused in the Court of learned IInd Additional Sessions Judge/Special Judge for S.T.A. Larakana in Special Case No.27 of 2001 in Crime No.54 of 2001 under sections 302, 324, 337-H(ii), 452, 148 and 149, P.P.C. registered at Police Station Mahi Makol. The bail application on behalf of the applicants was filed in the trial Court but the same was dismissed vide order dated 4-1-2007 by the learned IInd Additional Sessions Judge/Special Judge for S.T.A. Larkana, applicants have preferred similar application before this Court for seeking bail in the above offences. It is pointed out that several applications were filed in the trial Court as well as before this Court for seeking bail on behalf of applicants whereby this Court vide order dated 28-9-2002, 25-9-2003 and 15-4-2004 had dismissed earlier bail application on merits. In Special Case No.27 of 2001 an application was filed for seeking bail only on the ground of hardship that the applicant/accused are in the custody since 18-5-2001 for a period of more than 5 years but trial Court has not concluded the case in spite of best efforts made on behalf of applicants/accused. The conclusion of the trial is not within sight in near future. This Court vide order dated 25-9-2003 issued direction to the learned trial Court for examination of the witnesses within 2 months but the prosecution failed to comply with the directions. In the trial Court complainant has been examined who, in his deposition, has not taken the name of present applicant and it is only deposed that accused Minadad had fired at deceased and several other accused having been attributed role of firing at the deceased. It is further urged that there are general allegations of firing against some of accused including the present applicants therefore, it is yet to be determined by the trial Court as to which of the accused caused fatal shots to the deceased. As per prosecution in all 16 accused persons being armed with guns fired at the complainant party but the report of deceased Nizamuddin and Ghazala do not indicate the gunshot injury on their persons. As per F.I.R. 18 persons participated in the commission of the offence but the investigation has filed charge-sheet against 21 persons. The co-accused was nominated in the F.I.R. but subsequently he was let off by the police and his name has been placed in column-II of the challan. It is further urged that there is conflict between the F.I.R. and 164 Cr.P.C., statements of the prosecution witnesses, all 18 accused were shown standing in the courtyard of the house while as per 164 Cr.P.C. statement they have-added 4 persons were available in the car outside the house of the complainant. Mr. Muhammad Ayaz Soomro, learned counsel for the applicants submits that case of the applicant/accused is identical with the case of co-accused Muhammad Hashim and Muhammad Yousuf who have been released on bail by this Court vide order dated 19-10-2006. The trial Court has only examined three witnesses upto the August, 2004 despite all possible efforts made by the trial Court by issuing process against the prosecution witnesses but since no witness has been produced by the prosecution since last 2 years. Therefore, the applicants are entitled for the concession of bail on hardship ground. Mr. Mushtaque Ahmed Abbasi, learned Asstt. A.-G. submits that the case of applicants-accused is based on same footings as the case of co-accused Muhammad Hashim. and Muhammad Yousaf alias Dosoo who have been released on bail subject to furnishing solvent surety in the sum of Rs.500,000 and P.R. bond in the like amount. Admittedly the bail was refused to the applicants by the trial Court as well as by this Court vide order dated 28-9-2002, 25-9-2003 and 15-4-2004 but this application has been filed on the ground of hardship on the conclusion of the trial as the applicants/accused are in custody since 18-5-2001 and their trial has not been concluded. The file of Criminal Bail Application No.42 of 2006 has been placed before us. It reflects that co-accused A Muhammad Hashim and Muhammad Yousif alias Dosoo have sought bail, vide order dated 19-10-2006 the applicants were arrested in the month of May, 2001, they are in continuous custody for a period of more than 5 years. The trial Court has only recorded evidence of 3 witnesses in spite of this Court's direction dated 25-9-2003. As per F.I.R. 18 persons were shown as assailants but charge sheet was filed against 21 persons including applicants. The trial Court issued process against the prosecution witnesses but during last two years trial Court could not examine any witness despite direction. The applicants have remained in custody for long period of more than 5 years. The conduct of the prosecution for conclusion of the trial is not within sight. Early trial is right of accused persons and they could not be kept in custody without trial for indefinite period. During the course of arguments it was pointed out that one accused while remaining in custody for more than 4 years had expired. In view of the hardship being faced by the applicants, early trial as directed by this Court from time to time is not within sight as the prosecution has withheld evidence for .conclusion of the trial. Resultantly, we do not feel appropriate to issue further direction to conclude the trial as the co-accused Muhammad Hashim and Muhammad Yousuf alias Dosoo have been released on bail in the similar circumstances. The applicants/accused are entitled to concession of bail on the ground of consistency subject to furnishing surety in the sum of Rs.500,000 with one surety and P. R. bond in the like amount to the satisfaction of trial Court. The bail application stands disposed of along with listed applications. H.B.T./N-17/K??????????????????????????????????????????????????????????????????????????????????????????????? Bail granted.