BASHIR AHMED Versus THE STATE
The applicant, Bashir Ahmed, sought post-arrest bail in a murder case pending before the Court of Sessions Judge, Jacobabad, having been in continuous custody for over four years. His previous bail application had been disposed of with a direction to conclude the trial within two months, but no progress was made as prosecution witnesses failed to respond to bailable warrants. The core legal question was whether prolonged incarceration coupled with delayed trial due to non-attendance of prosecution witnesses warranted the grant of bail. The Sindh High Court held that since the trial could not be concluded within the stipulated time and witnesses failed to appear despite coercive processes while the trial court repeatedly issued bailable warrants instead of non-bailable warrants, the applicant was entitled to bail. The court laid down the principle that undue delay in trial owing to the non-appearance of witnesses, resulting in protracted incarceration exceeding four years without foreseeable conclusion, constitutes sufficient ground for granting post-arrest bail.
- Whether prolonged incarceration exceeding four years without conclusion of trial entitles an accused charged with murder to post-arrest bail?
- Does failure of prosecution witnesses to respond to bailable warrants justify the issuance of non-bailable warrants by the trial court?
- Whether delayed trial caused by the non-appearance of witnesses constitutes a ground for the grant of bail?
ORDER
Applicant Bashir Ahmed is facing trial for an offence of murder alongwith two other co‑accused before, the Court of Sessions Judge, Jacobabad.
2. As per the. F.I.R. lodged on 26‑9‑1999 by Complainant Mir Hassan, the applicant is shown to be armed with gun. He is attributed the role of causing the murder of Muhammad Hasan by firing from his gun at him. The other two accused, less seriously charged are on bail. The dispute between the parties is stated to be over matrimonial affairs.
3. The first application for bail of the applicant was dismissed by this Court on 8th January, 2003, not on merits, ac contained in the trial Court's order but on account of alternate prayer made by the applicants counsel and conceded to by the State counsel whereby this Court had directed for conclusion of the trial of the applicant's case within a period of two months.
4. This is the second bail application moved by the applicant after expiry of about one year. The contention raised in support of the bail application are that the learned trial Court has not made any progress in the case worth the name after receipt of the order of 8th January, 2003. Mr. Muhammad Ayaz Soomro learned counsel appearing for applicant has taken me to the case diaries (11th January, 2003 to 8th November, 2003) and has contended that in spite of the issuance of B.Ws against the P.Ws. not a single witness turning upon any progress as stated above, could be made. It was, urged that the application was arrested on 3‑11‑1999 and he is in custody since last more that four years. He has therefore, emphasized that the conclusion of the applicant s case vis‑a‑vis the coercive process of bailable warrants, the conclusion of trial cannot be visualized. He has placed reliance upon the case of Sooban v. The State (2003 PCr.R 1055), Ali Murad and others v. The State (2003 PCr.R. 1659), Ali Murad v. The State (2003 PCr.R (Larkana) 1659).
5. Mr. Muhammad Bachal Tonyo learned Addl. A.G. after going through the case diaries in detail and the order dated 8th January, 2003 of this Court and other material, does not oppose the bail application and has conceded to the grant of bail to the applicant.
6. The case diaries for the last about one year show that B.Ws were ordered to be issued to the remaining P.Ws. repeatedly but no witness could be examined. The applicant is in continuous custody since last more than four years and it cannot be ascertained as to when the case will come to its conclusion, while the trial Court may not be blamed wholly for not examining the P.Ws. as they have failed to respond even to the coercive process of the Court yet the trial Court in the given circumstance and the order of this Court, seems to have failed in executing this Court's order by failing to issue N.B.Ws. The Court's intention of repeating B.Ws. for one year or so is not clear, as there is no bar in law to order N.B.Ws against a P.W. who did not respond to the process of B. Ws and is found hampering with the trial process.
7. Resultantly the applicant is allowed bail subject to his furnishing solvent surety in the sum of Rs.500,000 and P.R. bond in the like amount to the satisfaction of Additional Registrar of this Court.
H.B.T./B‑8/K Bail granted.