2016 PLP 88 (YLRN)

S. 497(2)

Penal Code (XLV of 1860), Ss.302, 114 & 147

Qatl-i-amd, abetment, rioting

Bail, grant of

Complainant, in his deposition recorded by the Trial Court, did not implicate accused in commission of offence

Accused was nominated after two months of lodging the FIR by one prosecution witness, whose evidence was not recorded by prosecution

Accused was behind the bars since after his arrest on 26-9-2012

Trial Court could not conclude the case within two months despite clear directions of High Court in earlier bail application

Accused had already been acquitted under S.245(1), Cr.P.C., by the Trial Court in connected case of recovery of illicit weapons

Accused pressed the bail application mainly on the ground of statutory delay in trial, as the prosecution had examined only complainant during the span of three years, who did not implicate accused in the commission of offence

Speedy trial was inalienable right of every accused

Accused could not be left at the mercy of the prosecution in jail for an indefinite period

Delay in conclusion of trial of accused, could not be lightly ignored, provided it was not caused due to any act of omission of accused

Sixteen prosecution witnesses were yet to be examined by the prosecution, which would take sufficient time

Accused had succeeded in establishing the grant of bail on statutory delay

Co-accused had also been granted bail

Accused was admitted to bail, in circumstances. [Paras. 5, 6, 8 and 9 of the judgment] Abdullah v. The State 1985 SCMR 1509; Gul Hasan Penhyar v. State 1998 SCMR 390; Muhammad Aslam v. The State 1999 SCMR 2147 and Shabeer v. The State 2012 SCMR 354 ref. Farooq Hayat and Kamran Mirza for Applicant. Shaukat Ali Rajput for the Complainant. Zahoor Shah, Asstt. Prosecutor General, Sindh for the State. ORDER SYED MUHAMMAD FAROOQ SHAH, J.

The applicant, involved in case Crime No. 116/2012 registered with Police Station Brigade, Karachi seeks bail on statutory ground of delay in trial as provided under section 497(2), Cr.P.C.

2. The brief facts of the case are that on 11.05.2012 at about 2215 hours complainant Mehboob Ali received information through phone that his younger brother Rao Gulsher had been injured at Abe Senia line Road, in front of Baithak of Anwar alias Poly by 5/6 unknown persons; who was taken to Jinnah hospital by his relatives and neighbors, where Doctors had verified his death. Complainant stated that his brother Rao Gulsher several times had told him that Farzand and Muhammad Shafiq had several times extended him threats to kill and directed him to wind up his business. Complainant further stated that he has strong doubt Farzand and Shafiq through their relatives Anwar alias Poly had called his brother in 'Baithak' and then got him murdered through known terrorists.

3. Record shows that Bail Application moved by the applicant before the trial court was dismissed thereafter applicant moved Bail Application No.2110/2014 before this Court which was disposed of with directions to trial court for conclusion of the trial within two months. The Bail Application on statutory ground of delay in trial has also been dismissed by the trial court, hence this bail application.

4. Heard arguments. Record perused.

5. Perusal of the record shows that the incident had taken place on 21.5.2012. The complainant in his deposition recorded by the trial court did not implicate the applicant in commission of offence. It appears that after two months of lodging the FIR one prosecution witness Muhammad Nadeem nominated the accused but the prosecution could not record his evidence. The accused is behind the bars since after his arrest on 26.9.2012. The trial court could not conclude the case within two months despite clear directions of this Court dated 18.02.2015 in earlier Bail Application No. 2110/2014. Admittedly the applicant has already been acquitted under section 245(1), Cr.P.C. by the trial court vide order dated 06.9.2014 in connected case of recovery of illicit weapon punishable under section 13-D of Arms Ordinance, which order is available at page 97 of the file.

6. Learned counsel for the applicant pressed the bail application mainly on the ground of statutory delay in trial, as the prosecution has examined only complainant during the span of three years, who did not implicate the applicant in commission of offence. Learned counsel states that applicant is entitled for bail as a statutory right; to support such contentions reliance is being placed on the cases reported in Abdullah v. The State (1985 SCMR 1509), Gul Hasan Penhyar v. State (1997 SCMR 390) and Muhammad Aslam v. The State (1999 SCMR 2147). Learned counsel categorically states that in view of plethora of rulings of superior courts, the applicant/accused is entitled for bail.

7. Surprisingly, learned Assistant Prosecutor General, Sindh is yet adamant to oppose the bail application though he admits the afore-stated ground of bail is available to the accused.

8. On hearing both the sides at length and after going through the relevant provisions of law and citations mentioned above, I reached at the irresistible conclusion that the accused has succeeded to establish the grant of bail on statutory delay in trial as held in the case of Shabeer v. The State (2012 SCMR 354), wherein Hon'ble Supreme Court held that "Accused was arrested on 14.11.2007 and since then he had been in the custody despite framing of charge on 29.07.2008 and no proceedings had been concluded nor there was any reasonable possibility of conclusion of trial in near future, bail was allowed". Keeping in view peculiar facts and circumstances of the instant case, it may not be out of context to mention here that in our country liberty of individual has been guaranteed by the Constitution beside the fact that speedy trial is inalienable right of every accused person, therefore, even if the provision of section 497, Cr.P.C. in ordinary course is not applicable, the broader principle of the same can be pressed into service in hardship cases to provide relief to a deserving accused person incarcerated in jail for a shockingly long period. An accused person cannot be left at the mercy of the prosecution to rotten in jail for an indefinite period. The delay in the conclusion of trial of detained prisoners cannot be lightly ignored provided it was not caused due to any act or omission of accused. In the instant case prosecution since last three years succeed to examine the complainant and there remain sixteen prosecution witnesses those are yet to be examined by the prosecution and certainly it shall take sufficient time. Co-accused Muhammad Zohaib has also been granted bail by the trial court and remaining co-accused Muhammad Anwar, Muhammad Shafiq and Yasir have been granted anticipatory bail by the trial court. The law laid down by the Apex Court discussed supra is fully applicable to the circumstances of the case in hand.

9. Resultantly, the applicant is admitted to bail subject to his furnishing surety in the sum of Rs.2,00,000/- (Rupees two lac only) and P.R. Bond in the like amount to the satisfaction of trial Court. This bail application stands disposed of in the manner indicated above. HBT/M-44/Sindh Bail granted.