2009 PLP 24 (YLR)

MRS. QAISER IQBAL, J.

Granted subject to all just exceptions.

2. The applicant Syed Faisal Hussain son of Mamnoon Hussain has repeated the bail applications in Crime No.96/2004 for Commission of offence under section 302/ 34, P.P.C. registered at P.S. Azizabad, Karachi. Succinctly the facts are that Salman Hafeez lodged reported stating therein that he is carrying on business at Karachi and while at home during the night received a telephonic call from one Khalid Niazi Khan at about 9-00 p.m. his brother Sheeraz Hafeez had been injured by two persons by fire arms and he has succumbed to injuries. The complainant proceeded to Aga Khan Hospital, in emergency ward found the dead body of the brother, complainant's case is against two assailants for causing death of his brother. Upon completion of the investigation, challan was submitted. The case was set for trial, the trial Court has recorded the statement of star witnesses of the case. Learned counsel for the applicant has contended that in the delayed F.I.R. the complainant had disclosed the name of Khalid Khan Niazi as eye-witness but his statement under section 161, Cr. P. C. was not recorded. It is next urged that eye-witnesses Salim Ahmad, Tahir Khan in their statements before the trial Court neither identified the applicant nor supported the prosecution case. So far as the sole testimony of Sarwat Ali Khan is concerned, his statement is contradictory in nature as it was recorded by the police prior to the initiation of F.I.R. It is next urged that the testimony of Sarwat Ali Khan could not be relied upon due to short sight for the purpose of arriving at the conclusion that the applicant is responsible for commission of a heinous crime punishable with death or imprisonment for life. In support of the above contentions reliance has been placed on the case of Shebaz Ali v. The State reported in 2008 MLD Karachi 178 wherein the bail was granted on account of inordinate delay in the conclusion of the trial which has resulted in hardships to the accused, upon examination of material witnesses and there was no likelihood of the completion of the trial in near further. Learned counsel for the State has opposed the bail application on the ground that the direction of this Court in Cr. Bail Application. No.1078/2005 and Cr. Bail Application No.6/2008 was complied by the trial Court in letter and spirit and there is likelihood of the trial being concluded in the near future. I have considered the arguments advanced at bar, perused the record of the case. The prosecution case rests upon the ocular testimony the witnesses so far examined by the prosecution did not support the case except P.W. Sarwat Ali Khan. The deeper assessment of evidence as held in the case of Sooba Khan reported in 2006 SCMR 666 is not available at this stage, on tentative assessment of the evidence recorded by the trial Court it could be presumed that the applicant is entitled to bail at this stage as indefinite detention during trial could be irreparable in the event of his being found not guilty. It is well established law that an accused was presumed to be innocent unless found guilty. The applicant is behind the bars for the last four years, the trial has not yet completed despite the direction in two successive bail applications. In the above circumstances, I am inclined to grant bail to the applicant subject to furnishing solvent surety in the sum of Rs.200,000 and P.R. bond in the like amount to the satisfaction of the trial Court. This bail application stands disposed of accordingly. H.B.T./F-51/K Bail granted.