GHAZI AND 3 OTHERS Versus THE STATE
ORDER
1. This is an application for bail on behalf of Applicants, Ghazi, Muhammad Alim, Ali Dino and Ghulam Nabi. The case against the applicants under sections 302, 34, 114, P.P.C. and 13‑D Arms Ordinance is pending in the Court of First Additional Sessions Judge, Khairpur. Their bail application, on merits, was dismissed by this Court on 17‑6‑1985. The bail is now being prayed on the ground of delay in trial.
2. Mr. Usman Ghani Rashid appearing for the applicants contended that applicants have remained in Jail for more than 28 months and trial has not yet started and delay is not attributed to accused. He has referred to the case reported in 1984 S C M R 613. It is also argued that applicants are not previous convicts or hardened criminals.
3. Mr. A.Q. Halepota appearing for the complainant submitted that case was set on for trial on 8‑2‑1986, and subsequently on so many dates charge could not be framed as accused wanted to engage counsel or adjournments were sought. He has further submitted that this is a case where Mr. Ashiq Hussain, Advocate, was murdered in the heart of Khairpur city and accused are desperate and harden criminals.
4. Mr. Imam Bux Shaikh appearing for the State has opposed the bail and submitted that against two accused, another case under section 377, P.P.C. is also pending from which circumstances it is clear that they are desperate persons.
5. It is an admitted position that applicants Ghazi and Muhammad Alam were arrested on 17‑1‑1985, while Ali Dino was arrested on 29‑1‑1985, as such they have remained in Jail for more than two years. On 8‑2‑1986, Mr. Yousaf Ahmed Jaffery filed power for accused Ghulam Nabi and case was put of 22‑2‑1986 for trial. On 22‑2‑1986, Mr. Jaffery was absent hence charge could not be framed and it was put of‑ for charge on 29‑3‑1986, when accused were not produced and Mr. Jaffery was also absent. On 3‑5‑1986, accused were produced all defence counsel were absent. Mr. Shaikh Ayaz appearing for three accused submitted an adjournment application which was granted and case was put of to 24‑5‑1986, for charge. On 24‑5‑1986, 3‑6‑1986, Advocate of Ghulam Nabi was absent and on the number of occasions, from time to time, bail applications were filed. This bail application came up for hearing in this Court on 16‑8‑1987, when one Imam Bux, maternal‑uncle, of deceased Ashiq Hussain, appeared and stated that no process was served on the witnesses and he undertook to produce the witnesses before the trial Court on 23‑8‑1987. Mr. Halepota stated at the bar that eight witnesses were produced on the date of hearing but learned 1st Additional Sessions Judge had gone for training, therefore, case could not be proceed. There are the circumstances that some delay is attributed to accused as the charge could not be framed for sufficient time. The murder case cannot proceed in absence of the Advocate of any accused and in the number of cases, it has been observed that just to protect the proceedings, one or the other accused file applications for adjournment so that benefit of delay could be extended to the other accused.
6. The next point is whether the accused are desperate or dangerous. The incident took place in District Headquarter, Khairpur, in Sabzi Market, in the early morning. The motive is that 3/4 days prior to the incident a fight took place between Ghulam Murtaza, nephew of complainant and accused Ali Muhammad and Alam. Deceased had accompanied Ghulam Murtaza to police station for report; therefore, he has been murdered. The injuries on deceased are with fire‑arm, hatchet and Lathis. Learned Additional Sessions Judge in the Order dated 19‑5‑1987, stated that applicants are desperate and dangerous and it is an admitted position that against two accused, case under section 377, P.P.C. is pending in which they are on bail. This is a brutal murder of Advocate in the District Headquarter. This can only be done by some desperate persons and no one is safe even in District Headquarter. Prima facie, the allegation is against the applicants, therefore, in view of proviso 4 of section 497, Cr.P.C. the applicants do not deserve the concession of bail. The application is dismissed.
7. The case is an old one and it is right of the accused that their case should be decided expeditiously. Learned Additional Ses?sions Judge has gone on training; therefore, I direct the learned Sessions Judge to re‑call the case on his own file and proceed with the case or make over to any other Judge. The case should proceed day to day and trial be completed within three months. Mr. Halepota appearing for the complainant has stated at the bar that eight witnesses including complainant will be produced on the next date of hearing. He has been informed that witnesses should be present before the learned Sessions Judge on 29‑9‑1987. In case the witnesses avoid to attend the Court, the applicants are at liberty to repeat application for bail.
8. S. A . /G‑49/ K ??????????????????????????????????????????????????????????????????????????????????????????????? Bail refused.