2008 PLP 267 (YLR)

DR. RANA MUHAMMAD SHAMIM, J.

The brief facts of the case are that on 29-11-2003 at 0145 hours the complainant namely Mst. Razia Jannat lodged the F.I.R. stating therein that she is residing at House No.1726/1912, Ghose Nagar, Baldia Town, Karachi along with children and husband and she is a housewife. The husband of the complainant is a carpenter. On the date of incident i.e. 28-11-2003 at about 08-00 p.m. the husband of the complainant left the house. According to the complainant, her son namely Hasnain aged about 17/18 years left the house for taking cold drink, at about 8-15 p.m. her son Hasnain entered into the house by running and stated that there is quarreling outside the house, in the meantime they heard firing. The complainant and her, son left the house and saw that near the house in the street her husband was lying and an unknown young boy having pistol in his hand ran away on seeing the complainant. As per the complainant, her son Hasnain pulled her husband then they found wound on his head, they took the injured into the house and saw that there was also a fire shot at his left side of the abdomen. The husband of the complainant stated that the boy who ran away had fired upon him. In the meantime her nephew namely Farhan Ali also reached there. Thereafter they brought the injured to a private hospital and from where to Civil Hospital who was unconscious. Later on the injured has been expired.

2. None present on behalf of the applicant. The grounds urged in the bail application were that identification parade was held on 9-12-2003 after five days of arrest of the applicant. The description is not mentioned in the F.I.R. and the applicant is in judicial custody since more than last 3 years and 6 months and the prosecution has failed to examine a single witness before the Court and the trial of the case has not yet been commenced.

3. Vide order dated 10-10-2007 this Court had directed the learned trial Court to send progress report of the case. The report of the learned trial Court has been received, in which the Presiding Officer submitted that the Court was lying vacant since 6-6-2006 till 5-9-2007. The applicant/accused for the first time was produced before the Court on, 11-9-2007 and on that date the case was adjourned due to a strike announced by the Karachi Bar Association and the case was adjourned to 25-9-2007 for framing of the charge. On 25-9-2007 the applicant/accused was not produced by the Jail Authorities and the case was adjourned to 9-10-2007. On 9-10-2007 the position was the same and the matter was adjourned to 24-10-2007.

4. The case was registered on 29-11-2003 and the applicant/accused is in custody since 4-12-2003 and since theft the case has not been proceeded so far and even the charge has not been framed in this case. It is unfortunate that the bail application of the applicant/accused has been pending since 26-6-2007 and the case was adjourned for one reason or the other.

5. On the other hand Mr. Muhammad Sabir Haider, learned A.A.-G while conceding for grant of bail has relied upon the case reported in 2005 PCr.LJ 147 (Gul Beg v. The State) and. PLD 2005 Karachi 255 (Ghulam Abbas v. The State).

6. In the case of 2005 PCr.LJ 147 (Gul Beg v. The State), it has been held that: "We have given due consideration to the arguments of the learned counsel for the applicant and the learned State Counsel. It is not disputed that the applicant is continuously in custody for last more than four years and trial has not been concluded so far. We find ourselves in respectful agreement with the view taken by the Honourable Supreme Court in the above cited cases that delay per se is no ground for grant of bail but in the cases where it appears to be shocking and scandalous, as in this case, the Court can exercise its discretion in favour of an accused."

7. In the case of 2005 PCr.LJ 147 (Gul Beg v. The State), it has been held that: "Delay in prosecution of the case as ground was acknowledged as the statutory right by Legislature, but for the best known wisdom same had been withdrawn

Bail, however, had always been conceded by superior Court even when provisions regarding delay were not available on statute book and even in some cases where such restriction was imposed, Court conceded bail on the ground of undue delay

Delay in each case was to be judged and weighed on its own merits

Inordinate delay if not explained, would amount to abuse of process of law even in cases of capital punishment where prosecution was loath to submit challan, slow in producing witnesses, failed to produce accused without any justification and/or delaying tactics were used by persons other than accused including complainant

If the delay was so shocking and scandalous, it would amount to abuse of process of law."

8. There are no moral or legal grounds to keep the accused persons in Jail for an indefinite period. Since the applicant/accused is in jail custody for more than 3 and half years and the prosecution has failed to examine even a single witness in support thereof. Such inordinate delay is scandalous and shocking, the bail is accordingly granted to the applicant subject to his furnishing a solvent surety in the sum of Rs.5,00,000 (Rupees Five Lac only) and PR Bond in the like amount to the satisfaction of the learned trial Court.

9. Since no one appeared on behalf of the applicant, office is directed to intimate the applicant through Superintendent, Central Prison, Karachi for grant of such bail. Before parting, I appreciate the assistance extended by Mr. Muhammad Sabir Haider, learned A.A.-G. to this Court. N.H.Q./I-24/K Bail allowed.