2003 P Cr (PLP)

The bail application on behalf of the applicants/accused were filed but same were dismissed by the trial Court. The bail plea on behalf of the applicants were filed in this Court but the said bail application was not pressed on merits and the trial Court was directed to examine the complainant and two prosecution witnesses within a period of four months vide order dated 18-7-2002 passed by my learned brother Syed Ali Aslam Jaffri, J. In view of non-compliance of directions of this Court the bail application on behalf of the applicants filed in the trial Court, which were dismissed by an order dated 27-11-2002, Hence. these applications have been filed. It is contended by the learned counsel for the applicants that the case diaries of the trial Court have been filed and it is clear that learned trial Court has not complied the directions to examine the complainant and two prosecution witnesses within stipulated period. It is further urged by the learned counsel for the applicants that the applicants/accused persons are in continuous custody for more than two and half years and delay . in disposal of the case is shocking and the directions of this Court has not been complied with. Learned counsel for the applicants in support of his arguments has relied upon 1997 SCMR 207, Muhammad Sadiq v. Muhammad Shafi and another 1973 SCMR 212, Sher Zaman v. Muhammad Azad and another 1978 SCMR 248, Manzoor Khan v. Kamir and 4 others 1972 SCMR 207, 1994 PCr.LJ 12 and Ashok v. The State 1997 SCMR

436. The prosecution case as narrated in the F.I.R. is reproduced hereinbelow in extenso:-- "Complaint is that I am Tailor Master, Anwar son of Haji Muhammad Hashim Banbhan, resident of Weero had suspicion upon me and I have illicit terms with the wife of Khadini son of Hashim Bahbhan, on that they were annoyed. On 11-8-2001 my brother Amir Bux was cutting the grass near our houses that Khuda Bux and Khalid both sons of Haji Gohar, Anwar and Nasrullah, both sons of Muhammad Hashim Banbhan, resident of Village Weero came to land and enquired from my brother Amir Bux regarding me and caused injuries to Amir Bux, on that Amir Bux got registered such complaint at Police Station Mirwah. After that I alongwith my wife Mst. Zameeran and Mst. Khalida wife of Shah Nawaz Banbhan were cutting the grass for cattle from the land of Haji Shah Muhammad Banbhan, and saw at about 12-00 noon, each Khuda Bux son of Haji Ali Gohar armed with T.T. Pistol, (2) Khalid son of Haji Ali Gohar armed with Lathi, (3) Anwar son of Haji Muhammad Hashim armed with Lathi, (4) Nasrullah son of Haii Muhammad Hashim armed with hatchet, (5) Kadir Bux son of Haji Saffar empty-handed came there and after pointing the arms said that be silent and do not raise the cries. On that I due to fear remained silent, in my presence, above all accused striped off clothes of my wife Mst. Zameeran and Mst. Khalida wife of Shah Nawaz forcibly by -throwing their clothes away and caused Lathi blows and dishonoured and disgraced them by making them walk at the time my brother Abdul Haque and Muhammad Azam son of Haji Sobharo Lashari came there, at seeing them all accused alongwith removed clothes of our ladies went towards their houses, then I went to my Nekmards Sajjid Banbhan but he had gone to Karachi, today he came here and I stated above facts to him, who advised me to go to police station for lodging the F.I.R. Now I have come here and complain that above accused with common intention after creating commotion on the basis of above dispute, on the instigation of Haji Basar Banbhan striped off and tore clothes of my wife Mst. Zameeran and Mst. Khalida forcibly, caused the blows and have disgraced them and also made them walk." On the other hand Mr. Ghulam Rasool Rind, learned counsel appearing on behalf of the State has opposed the applications and submits . that according to the F.I.R. the allegations levelled against them are serious in nature and the applications are liable to be dismissed. I have considered the contentions of the learned counsel for the respective parties and the material placed on record and the case-law cited by the learned counsel for the applicants. The applicants/accused persons are in custody since more than two and half years and despite of directions of this Court, the trial Court had not been able to examine the complainant and two prosecution witnesses within four months time. In view of the dicta laid down in the above cited judgments, and in 1997 SCMR 436, the Honourable Apex Court while deciding the case of Ashok v. The State, it has been held as under:-- "Despite the positive direction of High Court, trial of the accused was not concluded by the trial Court within three months and the Investigation Officer was yet to be examined in the case accused not in any way responsible for delay on the undertaking of the State Counsel that trial will be concluded within one month, the petition converted into appeal and the trial Court was allowed one month's time to conclude trial failing which on the expiry of one month's period accused would be deemed to have been granted bail and would be enlarged on bail by the trial Court." . The applicants/accused persons cannot be held responsible for delaying the trial. It is also held by the Honourable Apex Court that freedom of the individual is precious right, personal. liberty granted by the Court of competent jurisdiction should not be snatched away from the accused unless it becomes necessary to deprive him of opportunity under the law. The applicants/accused persons are in continuous custody for more than two and half years and the trial Court had not recorded the evidence of three prosecution witnesses and directions of this Court has not been complied with. As per case diaries dated 4-7-2002 up to 4-3-2003, the applicants have not delayed the trial proceedings, therefore, they cannot be made responsible for delay in conclusion of trial or at least recording of evidence of three prosecution witnesses. The applicants/accused persons cannot be detained for indefinite period. The F.I.R. of this case was lodged on 26-8-2001 at 13-30 hours whereas the date and time of incident is 11-8-2001 at 12-00 noon and there is delay of 15 days in lodging of the F.I.R. At present other merit of the prosecution case cannot be considered as the bail application on behalf of the applicants /accused was not pressed and there was directions of this. Court to record the evidence of the complainant and two prosecution witnesses by an order dated 18-7-2002, which has not been complied with by the trial Court. In view of the judgment relied upon by the learned counsel for the applicants, I am of the view that the trial Court Did-delayed the disposal of the case which is shocking as applicants/accused are in custody for more than two and half years. I am of the view that the applicants/accused above named have made out a case for grant of bail. Resultantly, bail is granted to the applicants subject to their furnishing surety in the sum of Rs.2,00,000 (rupees two lacs only) each and P.R. Bond in the like amount to the satisfaction of the trial Court. The prosecution will be at liberty to file application for cancellation of bail in the trial Court without referring to this Court if complainant and eye-witnesses bring positive evidence for commission of offence against the applicants/accused. H.B.T./A-457/K????????????????????????????????????????????????????????????????????????????????? Order accordingly