YAR MUHAMMAD Versus State
This matter comes before the Sindh High Court through a post-arrest bail application filed by Yar Muhammad against the dismissal of his bail plea by the Additional Sessions Judge, Thatta, in Sessions Case arising from F.I.R. No.53 of 2005 registered under sections 302, 324, and 504 of the Pakistan Penal Code. The core legal question concerns whether the applicant is entitled to post-arrest bail on the ground of statutory hardship and delayed conclusion of trial where no prosecution witnesses have been examined despite the framing of the charge several years prior. The court held that the applicant has made out a clear case of hardship due to the protracted incarceration since October 2005 and the failure of the prosecution witnesses to appear, despite undertakings given before the trial court. Consequently, the court granted bail to the applicant, laying down the principle that undue and unexplained delay in the conclusion of a trial, attributable to the prosecution or inaction of witnesses, constitutes a valid ground of hardship warranting the grant of post-arrest bail.
- Whether prolonged incarceration without substantial progress in the trial constitutes a sufficient ground of hardship for granting post-arrest bail?
- Does the failure of prosecution witnesses to appear for examination justify the release of an accused on bail?
- Can an undertaking by the prosecution to expedite the trial negate the accused's right to seek bail on the ground of fatal delay?
- Section 302, Pakistan Penal Code
- Section 324, Pakistan Penal Code
- Section 504, Pakistan Penal Code
ORDER
1. SYED MAHMOOD ALAM RIZVI, J .---This bail application is directed against the order dated 27-7-2008 passed by the Ist Addl. Sessions Judge, Thatta, in sessions Case No.139/2005, in respect of F.I.R. No.53/2005 registered at Police Station Jati under sections 302/324/504, P.P.C, whereby the bail application of the applicant was dismissed.
2. Precisely, the facts of the case are that on 3-10-2005 main accused Sono and the Applicant said to have armed with guns arrived in the fields of the complainant and killed Muhammad Aachar and injured P .W. Akbar. As a result, the above F.I.R. was registered. The accused persons were arrested and after the investigation challan had been submitted. The charge was framed on 26-5-2006 and since then no P.W. has been examined so far.
3. Earlier Bail Application of the applicant bearing No.985/2007 was disposed of by the consent on 16-6-2008 and the applicant was directed to file a fresh bail application and the trial Court was directed to dispose of the same within two months.
4. It is, inter alia, contended by the learned counsel for the applicant that charge against the accused/applicant was to injure P.W. Akbar, however, the injury was not on the vital parts and even he had not repeated the same. Per case diaries it reveal that though the charge was framed on 26-5-2006 but no P.W. has been examined so far, which shows that the complainant party is reluctant to proceed with the case while the applicant is behind bars since October, 2005. Therefore, a case of hardship is made out.
5. Mr. Zafar Ahmed Khan, learned APG, concedes to grant of bail on the ground of hardship as he himself gone through the diaries and pointed out that for the last many months the witnesses are not appearing before the Court.
6. Heard both the counsel and perused the record very carefully.
7. The contention of the learned counsel for the applicant appears to be correct as for the last many months the witnesses are not appearing in Court though the complainant party has engaged a counsel, but no serious efforts have been made by them to examine the witnesses and the trial Court was compelled to issue bailable warrants to witnesses. The learned trial Court was pleased to dismiss the bail application on the ground that an undertaking was given by the learned DDA and the learned counsel for the complainant that they would produce the witnesses and proceed the case expeditiously and on the basis of such undertaking the learned trial Judge opined that the ground of fatal delay was not available to the applicant. I am afraid that the diaries of the case speak otherwise. This was a fit case in which the bail could have been granted to the applicant on the ground of hardship. Therefore, bail is granted to the applicant subject to furnishing solvent surety in the sum of Rs.3,00,000 (Rupees three lacs only) with P.R. bond in the like amount to the satisfaction of the trial Court.
8. The learned trial Court is further directed to proceed with the case expeditiously and conclude the same within six months and no adjournment be granted except on extraordinary circumstances.
9. In the above terms this bail application stands disposed of.
10. H.B.T./Y-8/K Bail granted.