1997SCMR390 (PLP)

SAIDUZZAMAN SIDDIQUI, J.‑‑‑Gul Hasan Penhyar, petitioner, is being tried in three separate cases before the Special Court No. l (S.T.A.). Karachi in Crime No.90/88 of P.S. Taluka Mirpurkhas under sections 302, 307 and 353, P.P.C. read with section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, Crime No.91/88 of P.S. Mirpurkhas under sections 302, 353, P.P.C. and Crime No.92/88 of P.S. Mirpurkhas under section 13‑D of Arms Ordinance. The abovementioned three cases were registered against the petitioner at the instance of S.H.O. Syed Phulley Shah of P.S. Taluka Mirpurkhas.

2. The incident is stated to have taken place on 2‑10‑1988 while the petitioner was arrested on 3‑10‑1988. From the diary sheet produced by the petitioner's counsel before this Court it appears that the challan was submitted in the case on 30‑10‑1988 and since then the case has come up for hearing before the Trial Court on number of dates but no evidence has yet been recorded in the case. The learned counsel for the State contends that in spite of summons being issued to the prosecution witness no witness has so far appeared to depose against the petitioner. The petitioner's bail application was rejected by the Trial Court so also by a Division Bench of the High Court of Sindh.

3. It was contended before the learned Judges of the High Court of Sindh that the petitioner was arrested in the case on 3‑10‑1988 and in spite of expiry of a period of almost 7 years the case has not proceeded at all. It was also contended on behalf of the petitioner before the Division Bench of the High Court that although the petitioner was said to have committed the offence on 2‑10‑1988 but at the same time and date another F.I.R. No.147/88 was also registered against the petitioner at P. S. Tando Adam, District . Sanghar under sections 302, 307 and 353, P.P.C. read with section 17(4) of Offences Against Property (Enforcement of Hadood) Ordinance which shows that the petitioner was falsely involved in the case as the distance between Mirpurkhas and Sanghar is about 50 miles and it was hardly possible for the petitioner to be present at both places simultaneously at the same time and on the same date. The learned Judges of the High Court, however, declined to admit the petitioner to bail and rejected his bail application with these observations:‑‑ "Irrespective of the fact that there has been inordinate 'delay in the conclusion of trial, the fact, however, remains that the applicant is charged with heinous offences and he probably belongs to a gang of a dacoits for whom the police had information that they were hiding in a sugarcane crop for committing some offences. The H.C. Khair Muhammad lost his life during encounter with the dacoits and another police constable is said to have been seriously injured. The case of the applicant is fully covered by the prohibition contained in section 497 of Cr.P.C. and we are not inclined to grant him bail. The bail applications are accordingly dismissed. "

4. The learned Judges while declining bail to the petitioner failed to take into consideration that although the allegations in the F.I.R. are of heinous nature but neither the name of the offender nor his description is disclosed in the F.I.R. The learned Judges also failed to take into account that in spite of the fact that the petitioner was arrested in the case as far back on 3‑10‑1988 and challan in the case was submitted before the Special Court as early as on 30‑10‑1988 but no witness has so far been examined in spite of the fact that the trial is being conducted inside the jail and most of the witnesses, who are to be examined in the case, are police officials. The learned Judges of the Division Bench while declining to admit the petitioner to bail by the impugned order dated 11‑1‑1995 had directed the Trial Court to expeditiously dispose of the case and if possible within a period of six months. The learned counsel for the State admits that in spite of this direction by the learned Judges of the Division Bench no witness has so far been examined.

5. We may also mention here that while adjourning this case on 23‑4-1995; this Court had directed the Advocate‑General, Sindh, to make the entire record of the case available before the next date of hearing and since then cases have been fixed in Court twice but the record has not been produced. When we asked the learned State Counsel to produce record of the cases, he was unable to produce the same and stated that the person who was supposed to bring the record in the case has been transferred. The manner in which the case has been conducted on behalf of the State before this Court by the Advocate‑General is depreciable. The learned State Counsel though contended that the petitioner is a desperate and hardened criminal but nothing has been brought on record in support of this contention. The name of the petitioner does not transpire in the F.I.Rs. and in spite of the direction of the High Court to conclude the trial within six months not a single witness has so far been examined in the case while the petitioner is in custody waiting for the trial for over 6 years. After hearing the learned counsel for the petitioner and the learned State Counsel, we have converted these petitions into appeals and keeping in view the circumstances mentioned above, we are inclined to admit the petitioner to bail in the sum of rupees two lacs in each of above three cases with two sureties of the equal amount in all the cases to the satisfaction of the Trial Court. N.H.Q./G‑548/S Bail allowed.