2008 PLP 1327 (MLD)

KHALID ALI Z. QAZI, J.

This is an application under section 497, Cr.P.C. filed on behalf of applicant Mumtaz Ali son of Abdul Raheem alias Abdul Ghafoor Brohi, for grant of bail in Crime No.15 of 2006, under sections 302, 201 and 34, P.P.C. registered with Police Station Shandadkot. The brief facts of the case are that on 29-1-2006, complainant Muhammad Ramzan lodged F.I.R. at Police Station Shandadkot, alleging therein that the brother of the complainant Lal Bux aged about 45/50 years used to reside in Drib Muhalla with his son Mir Hassan and other family members. On the day of Eid-ul-Azha, complainant and some other relatives went to the house of his brother Lal Bux. At his house, his nephew Mir Hassan and Mumtaz both sons of Lal Bux and Mumtaz son of Abdul Raheem Brohi (brother-in-law of Mir Hassan) met them. On enquiry, complainant was intimated that Lal Bux has gone to Qubo Saeed Khan. Thereafter complainant came to know that his nephew Mir Hassan left house and then he got information that at some unknown time, both of his nephews mentioned above with Mumtaz son of Abdul Raheem and one unknown person have killed Lal Bux due to some matrimonial affairs and have concealed his dead body in order to disappear the evidence. After completion of investigation police has submitted the charge sheet in the trial Court. Previously the bail application was rejected by the trial Court, thereafter applicant moved bail application before this Court and as per order, dated 4-4-2007, in Criminal Bail Applicant No. 345 of 2006, directions were given by this Court to the trial Court to record evidence of material witnesses i.e. complainant and eye-witnesses Mst. Dhayani within a period of six months, whereafter the applicant may repeat bail application. The learned counsel for applicant has stated that the complainant and one eye-witness Arbab Ali have been examined; however, eye-witness Mst. Dhayani has still not been examined. On 11-2-2008, the report was called by this Court from the trial Court as to why the direction of this Court has not been complied with. The learned Additional Sessions Judge, Shandadkot, submitted the report, wherein it has been mentioned that due to violent attack by protesting mob on 27-12-2007, against the killing of Mohtarma Benazir Bhutto, Ex-Prime Minister of Pakistan, all the record and proceedings including other articles lying in the Court building Shandadkot have been destroyed/burnt, therefore, the order for preparation of duplicate case files was issued and duplicate police papers were called from concerned police station. It is further stated in the report that on 2-2-2008, S.I.O. of Police Station Shandadkot appeared and submitted that the record of the police station has also been burnt/destroyed by the people on 28-12-2007. However, he was directed to collect copies of police papers from DSP/DPO Officer. Mr. Aftab Ahmed Gorar, learned Advocate for the applicant submits that there is inordinate delay of 20-days in lodging the F.I.R. Statements of P.Ws. Khadim Hussain and Arbab Ali have also been recorded with the delay of one and half months, therefore, case of the applicant is highly doubtful and false implication of the applicant cannot be ruled out. He further contended that complainant Muhammad Ramzan in his cross-examination (Exh.6), has admitted that he had not given the name of present accused Mumtaz to police. The learned Advocate further contended that the applicant was arrested on 24-2-2006, and since then he is languishing in jail due to delay in trial and there is no hope of completion of trial in normal time due to non-availability of the record of the trial Court as mentioned by the learned Additional Sessions Judge, Shandadkot, in his report, dated 16-4-2008. Mr. Naimatullah Bhurgri learned State counsel conceded the position and has not opposed the bail application on the ground of inconclusive trial and hardship case. It is settled principle of law that object of criminal trial was to make accused for his trial and not to punish as under-trial prisoner. Expeditious and fair trial is right of accused and prosecution could not be absolved or given any latitude on account of inability to produce accused from jail for lack of resources. It is well-settled that State was bound to make arrangement for providing logistics to prosecution and maintenance of law and order to ensure proceeding of the trial in courts of law. It is well-settled that where accused was able to show that unexplained delay was on the part of prosecution to proceed with the case and there was no possibility to conclusion of the trial proceedings within reasonable time, bail could be granted to the accused on ground of delay. Reliance may be placed on PLD 2005 Karachi 255 (Ghulam Abbas alias Abbasy v. the State). In the case of Manzoor Khan v. The State 1972 SCMR 207, it was observed that it is not the intention of law to keep U.T.P. including those charged with capital offence without trial for inordinate long period without satisfactory explanation or reason to justify that action. In the cases of Mohammad Sadique v. Muhammad Shafi and another 1973 SCMR 212, bail on the ground of one year delay granted by the High Court was not cancelled by the apex Court. In another case Ihrar Muhammad v. The State PLD 1974 SC 224, committal proceedings took two years, bail was granted by the Sessions Judge which order was maintained by the High Court as well as the apex Court. In the present case the prosecution in support of its case had examined complainant Muhammad Ramzan and P.W. Arbab Ali. In cross-examination complainant Muhammad Ramzan has not implicated the applicant. The 'applicant was arrested on 24-2-2006, and he is continuously in custody since then. In the absence of availability of record the case could not be proceeded. Respectfully relying upon the case-law reported in 2003 MLD 19, AIR 1941 Sindh 186, AIR 1942 Calcutta 219; PLD 1955 Sindh 227 and 2000 SCMR 107 and looking to the hardship caused owing to inordinate delay in conclusion of the trial in the peculiar circumstances of the case in hand I am of the view that it is fit case in which indulgence must be demonstrated. Learned State counsel has thus rightly conceded to the grant of bail keeping in view hardship inflicted upon applicant. For the foregoing reasons the applicant is directed to be released on bail on his furnishing surety in the sum of Rs.200,000 and P.R. bond in the like amount to the satisfaction of trial Court. M.H./M-79/K Bail granted.