MUHAMMAD MOOSA Versus State
ORDER
KHADIM HUSSAIN TUNIO, J .---Through this single order, I intend to dispose of the above captioned bail appeal.
2. Succinctly, the facts of the present case are that on 27.04.2013, at about 2100 the complainant Abdul Karim lodged the present FIR at Police Station Ghouspur wherein he disclosed that there is old murderous enmity between them and accused Ismail Ogahi and others, his uncle Abdul Sattar, being Assistant Sub-Inspector in Police Department, who was appointed by SP Kashmore at Kandhkot as incharge for providing Oil to the government vehicles. Complainant and his cousins namely Abdul Samad and Saif Rehman left the house and proceeded towards Kandhkot on Motorcycle, when they reached at Wagon Stand Ghouspur, his uncle ASI Abdul Sattar Ogahi met and informed that he had to come at Indus Highway for checking Oil and mobile of Government vehicles and then he would proceed back to District Head Quarter Kandhkot, to whom the complainant replied that they will also proceed to Kandhkot, saying so their uncle Abdul Sattar proceeded towards Kandhkot on his motorcycle, the complainant along with his cousins followed him on their motorcyles. At about 11:30 a.m. when they reached at Dhodho Khabar and identified applicant Mohammad Moosa and Ismail, Mehrab alias Bhooro, Haji Shafqat Ali, Bashir, Amanullah alias Amano, Mukhtiar Ahmed and Abdul Aziz armed with K.Ks. arrived there, aimed their guns at them and directed them to stop, due to fear of firearms, they stopped the motorcycles, alighted from it, Abdul Aziz instigated co-accused and applicant to commit murder of Sobedar Abdul Sattar on his instigation Ismail fired with K.K at Abdul Sattar, which hit him on the fore-head, Amanullah alias Amano fired with K.K at Sattar which hit him on nipple, applicant Muhammad Moosa fired with K.K at Abdul Sattar which hit him on the head. Haji fired with K.K at Abdul Sattar which hit him on his leg, Shafqat Ali fired with K.K. at Abdul Sattar which hit him on hand, Mehrab alias Bhooro fired a burst of K.K at Abdul Sattar which hit him on shoulder, Bashir fired a burst of K.K at Abdul Sattar which hit him on abdomen. Mukhtiar Ahmed fired a burst of K.K at Abdul Sattar which hit him on the back, after receiving fire arms, he raised cries, fell down and died at the spot, due to fear of weapons they did not go near to assailants, who ran away to the southern side, then the complainant and his cousins saw that Abdul Sattar received firearm injuries of K.K on his abdomen, forehead, nipple, shoulder, back, leg, hand, blood was oozing and died. Thereafter, they brought the dead body of the deceased Abdul Sattar to PS, obtained letter, went to RHC Ghouspur, after got conducting post mortem, they buried his dead body, then came at PS and lodged FIR.
3. Learned counsel for the applicant urges that the applicant is innocent and has been, falsely implicated on the account of matrimonial differences between them; that immediately after the incident, complainant reported the matter to police and also obtained a letter for the post mortem without nominating any person for the commission of offence and nomination of the present applicant subsequently in FIR is of no consequences, that subsequent FIR has no evidentiary value; that applicant is languishing in jail since 28.10.2013 without progress into the matter till today only M.O. has been examined; that the case was thoroughly investigated by the police and came to the conclusion that case against applicant is of false one and put his name in Col. No.2 of the charge sheet and learned Magistrate straight away issued NBWs against him, but same were also suspended; that section 353, P.P.C. was deleted at the time of framing of charge by the trial court: that from 26-07-2013 up to 28-10-2013, applicant was attending the Courts regularly and he will never misuse the concession of bail, if application as prayed is allowed; that there is no consistency in between medical evidence and ocular account; that there is delay of registration of FIR hence, at this stage false implication cannot be ruled out; that there is long standing enmity between the parties, therefore along with actual culprits present applicant was also introduced as an accused by the complainant party just to see him behind the bars; that nothing has been recovered from his possessions which may tie him to this case; that no one should be confined in jail for an indefinite period; that fair and speedy trial is fundamental right of every accused; that the case of the applicant definitely calls for further inquiry. In support of his submissions he has placed his reliance on case law reported in PLD 1997 Karachi 156, 1999 PCr.LJ 184, 1999 PCr.LJ 966, 1999 PCr.LJ 1879, unreported Cr. Bail Application No. D-227/2001 and 2012 SCMR 354.
4. On the other hand, learned APG for State opposed the bail application: However, Mr. Shahbaz Ali, counsel for complainant has argued in the same line as argued by learned APG for State.
5. I have paid close consideration to the submission made by the learned counsel for the respective parties. Perused relevant record carefully. From the perusal of case papers, it is contemplates that applicant is nominated in the FIR with specific allegations; that the applicant along with co-accused had allegedly committed murder of deceased Sobedar Abdul Sattar. This fact finds support from the statements of prosecution witnesses recorded under section 161, Cr.P.C. The ocular account has been fully supported by the medical evidence. The bail plea of the applicant has already been declined up to the level of Honourable apex Court on merits. Applicant also did not press his bail application which was dismissed as not pressed by this Court vide order dated 30.11.2015. Nothing has been brought on record that prosecution witnesses have any ill will or grudge against the applicant, which prima facie shows involvement of the applicant in this case of serious and heinous in nature and the punishment for offence with which applicant is booked falls under the prohibitory clause of section 497, Cr.P.C.
6. Present applicant seeks bail on the ground of statutory delay in conclusion of trial, therefore, I have gone through the amendment made in section 497, Cr.P.C., which transpires that where court is of the opinion that delay in trial of the accused has not been occasioned by an act or omission of the accused or any person acting on his behalf, direct that such accused person be released on bail, who is accused of an offence punishable with death, has been detained for such offence for continuous period exceeding two years and trial has not been concluded provided that the above benefit will not be available to a previously convicted offender for an offence punishable with death or imprisonment for life. So far the delay for non-conclusion of trial within a period of two years is concerned, it is pertinent to point out here that on 10.06.2015, 30.09.2015, 25.11.2015, 31.12.2015, 28.01.2016, 7.9.2016, 5.10.2016, 19.10.2016, 12.11.2016, 1.12.2016, 14.12.2016, 4.1.2017, 17.1.2017, 4.2.2017. 18.2.2017, 8.3.2017 and 18.3.2017 although prosecution witnesses were present in Court for recording of evidence but case could not be proceeded on account of non-availability of defence counsel or adjourned at the request of defence counsel. As per case diaries of trial court available on record, which shows that defence was responsible for causing, delay in finalization of trial within the period of two years. The intention of law is to see that whether finalization of the trial has taken place on account of the delay caused by the defence. In the case of Akhtar Abbas v. The State reported in PLD 1982 SC 424, adjournments were sought on eight occasions and it was observed that all that is necessary to be seen whether the delay in finalization of the trial has, in any manner, been delayed by an act or omission on the part of the prosecution or defence. In the case in hand, delay was partly attributed to the applicants, which was clear from the diary sheet of the trial Court. Again in another case of Muhammad Younis v. The State reported in 1995 SCMR 1087, it was held that the defence on four occasions had requested for adjournment and the accused, therefore, was not entitled to concession of bail. Also in the case of Javid-ur-Rehman and another v. The State reported in 2010 SCMR 1744 although on one date, prosecution witnesses were present in Court but counsel for accused did not appear for recording of evidence, bail was refused by Hon'ble Supreme Court.
It is well established principle of law that in criminal administration of justice, each case has to be decided on its own facts and circumstances and Courts are required to exercise jurisdiction independently. Reliance in this respect is placed on a case of The State v. Haji Kabeer Khan reported in PLD 2005 Supreme Court 364 and in case of Muhammad Faiz alias Bhoora v. The State and another reported in 2015 SCMR 655, it has been held as under--
"S. 497(2)---Bail---Case-law cited by counsel for accused in support of bail---Relevance---Precedents in bail matters were of no help to a party, as it varied from case to case depending upon the facts of each case---Court had to examine as to whether accused had made out a case of further inquiry or not."
8. In another case of Farrukh Qadri v. State (2006 PCr.LJ 1256), it has been held by this Court as follows:
"The narration of the facts, depicting the picture of attendance of witnesses in the year 2005 shows that they were present on 10 dates and it is not difficult to visualize that these were not the only dates when they appeared and case did not proceed and therefore, they lost patience and discontinued to appear before the Court. The prosecution and defence are not supposed to test patience of the witnesses and when they lose it then start claiming concession. The benefit can be sought only if the witnesses fail to appear in order to cause the delay and extend the incarceration of the accused person in jail."
When the 3rd and 4th proviso to section 497, Cr.P.C. were on the Statute Book, this point was considered by several superior Courts. Pre-dominant view was that if the witnesses appeared on several dates and were not examined, their subsequent absence, shall not justify the release of accused on bail as a matter of right and same principle is still applicable when the bail is not be granted as a matter of right but can be considered on the ground of inordinate delay in disposal of the case.
"I would also like to observe that generally the trial Courts appear to be totally oblivious of the provisions contained in section 540-A, Cr.P.C. and, therefore, are not resorting to this provision, in any case, which was inserted to meet the eventualities as in this case. It appears that the learned Advocate for the complainant and prosecutor, as well as the learned defence counsel failed to assist the Court and never made a request that if one or two accused were not produced on any particular date, while other accused persons were present before the Court and the witnesses were in attendance, and the accused who were not produced before the Court were represented through the Advocate the case could be proceeded with I am of the opinion that the trial Court, prosecutor, Advocate for the complainant and the defence Advocates have equally contributed in causing delay in disposal of the case and perpetrating the agony on the accused as well as prosecution witnesses. This state of affairs cannot be termed as satisfactory by any stretch of imagination. The system of law can work properly if all the stake-holders perform their duty properly and with due diligence. Be that as it may the entire responsibility for delay cannot be saddled on the shoulder of prosecution witnesses, therefore, I am of the opinion that the applicant is not entitled to be released on bail. The bail application stands dismissed accordingly.
9. So far case law referred by learned counsel for applicants at Bar are concerned the same have been perused and considered by the same are distinguishable from the facts of the case in hand.
10. For the above stated reasons, criminal bail application is dismissed. However, trial Court is directed to decide the case within a period of six months time and its compliance report be submitted to this Court through learned Additional Registrar for perusal.
11. Whatever observed above is tentative in nature and will not cause any prejudice to the case of either party at the trial.
MQ/M-146/Sindh Bail refused.