2010 PLP 377 (MLD)

KHADIM HUSSAIN M. SHAIKH, J.

Through this application, applicant seeks post-arrest bail in Crime No.33 of 2008 of Police Station Mahi Makol for offences under sections 302, 324, 148, 149, P.P.C. The Bail plea of the applicant did not find favour with the learned 1st Additional Sessions Judge, Larkana, who dismissed his application vide order, dated 29-12-2008. Hence this application.

2. Briefly the facts of the prosecution case are that on the fateful day of incident that is to say 12-9-2006, the complainant Syed Ashiq Ali son of Syed Abdul Rehman Shah, his brother Syed Jhandal Shah and his sons Syed Sajjad Ali Shah and Syed Lutuf Ali Shah were returning to their houses and at about 8-00 a.m. when they reached in the common street near Primary School Village Batool Shah accused Raza Shah

2. Syed Khadim Hussain Shah,

3. Syed Bagan Shah all three armed with guns,

4. Syed Afzal Shah armed with pistol. headed by Syed Murad Ali Shah came there. Then on the instigation of Syed Murad Ali Shah, accused Syed Raza Shah fired his gun straight at Syed Jhandal 'Shah who receiving fire-arm injury fell down raising cry and died. The accused Syed Bagan Shah, Khadim Hussain Shah and Syed Afzal Shah fired their guns straight at Syed Sajjad Ali Shah, who receiving injuries fell down raising cry and went unconscious. Complainant then sent his injured son Sajjad Ali Shah to the hospital at Larkana with 'the help of villagers for his treatment and then he leaving his son Syed Lutuf Ali Shah and other villagers to guard the dead body of Syed Jhandal Shah appeared at Police Station Mahi Makol and lodged the F.I.R. The motive behind the incident, as stated by the complainant was that prior to this incident there was altercation and quarrel between the complainant party and the accused party on entering the complainant's goats in the paddy crop standing in the land of accused Syed Murad Ali Shah and then this incident took place.

3. Learned Advocate for the applicant has contended that there is general allegation against the present applicant Khadim Hussain Shah and co-accused Bagan Shah and Afzal Shah of causing injuries to injured Syed Sajjad Ali Shah, that the role of causing injuries to the, deceased Jhandal Shah is attributed to co-accused Raza Shah and that the specific directions, dated 10-7-2008 passed by this Court for conclusion of the trial within a period of three months have not been complied with by the learned trial Court as only charge was framed on 8-10-2008 and not a single witness has been examined by prosecution till date and that the applicant was arrested on 12-9-2006 and since then he is in custody and thereby he has remained in jail for more than 2 and half years. He placed reliance upon the case of Muhammad Aslam v. The State (1999 SCMR 2147).

4. Learned State counsel has frankly conceded to the grant of bail to applicant.

5. I have carefully considered the arguments addressed by the learned counsel for the parties and has also gone through ,the material placed before the Court. I find that the role of causing injuries to the deceased Jhandal Shah is attributed to co-accused Raza Shah and there is general allegation against present applicant and co-accused Bagan Shah and Afzal Shah of causing injuries to injured Sajjad Ali Shah, the applicant is undoubtedly in custody since last more than two and half years and not even a single witness from the prosecution side has been examined.

6. In order to appreciate the contention of learned counsel for the applicant regarding non-compliance of the directions, of this Court for conclusion of the trial within the specified period, it would be advantageous to have glance at the relevant para of this Court order, dated 10-7-2008, which reads as under: "At the very outset, learned counsel for the applicant states that he will be satisfied if the trial Court be directed to conclude the trial within a reasonable time. Latter has no objection for the aforesaid proposal. With the consent of learned State counsel, trial Court is directed to conclude the trial within a period of-three months, on receiving copy of this order, under intimation to this Court. However, the applicant will be at liberty to repeat bail application in case of non-compliance of the Court directions. With above directions, Criminal Bail Application No.161 of 2008 is disposed of."

7. In the case of Muhammad Aslam v. The State (Supra), the apex Court admitting the petitioner to bail has observed as follows:-- "After hearing the learned counsel for the parties, we find that the trial against the petitioner has not been completed by trial Court despite directions issued by the High Court. The learned Law Officer is unable to give any explanation for non-compliance of the order of the High Court. This being so, the petitioner is admitted to bail in the sum of Rs.2,00,000 (rupees two lac) with two sureties each in the like amount to the satisfaction of learned Sessions Judge, Bakhakhar. In the above terms this petition is converted into appeal and allowed."

8. In the case in hand, despite the clear directions of this Court for conclusion of the trial within a period of three months in order, dated 10-7-2008 passed by this Court while disposing of the Bail Application No.161 of 2008 of the applicant, the trial has not been completed for which there is no explanation from the State counsel.

9. Considering the above over all circumstances of the case of the applicant, I am of the view that the applicant has made out case for grant of concession of bail therefore, bail is granted to applicant in the sum of Rs.300,000 (Three lass), subject to furnishing solvent surety with P.R. in the like amount to the satisfaction of trial Court. H.B.T./K-20/K Bail granted.