SARTAJ ALI alias MARU Versus State
ORDER
AFTAB AHMED GORAR, J. ---The applicant Sartaj Ali alias Maru son of Noor Muhammad has sought bail under section 497, Cr.P.C. in Crime No. 99 of 2015 registered with Police Station Mirpur Bathoro District Sujawal under sections 302/114/337-H(2)/504/34, P.P.C. Earlier, by an order dated 23.12.2016 bail has been declined by the learned trial court hence the instant bail application has been pressed by learned counsel on sole ground of statutory delay in trial.
2. I have heard the learned counsel for applicant, learned Deputy Prosecutor General, Sindh and perused the record.
3. As per FIR this is a case of ineffective firing and the present applicant has been shown present at the place of incident armed with firearm and on his instigation as alleged, other accused persons made fires upon the deceased son of complainant.
4. Learned counsel for the applicant inter alia contended that applicant has falsely been implicated in this case with mala fide intention and ulterior motive. Learned counsel submitted that in the bail matter no deeper appreciation is to be considered in grant or rejection of the bail. Learned counsel for the applicant submitted that prosecution failed to conclude the trial; the applicant is behind the bars since his arrest and delay in trial is not on the part of applicant. To support his contentions, the learned counsel for the applicant contended that the applicant/accused was arrested on 20.11.2015 and since then he is continuously in confinement, therefore, in view of newly added proviso of section 497, Cr.P.C. he is entitled for bail. It is next contended that certified copies of diary sheets, annexed with the application, show that delay in trial is not attributable to the applicant. Learned counsel categorically stated that in view of plethora of rulings of superior courts, the applicant/accused is entitled for bail on the ground of statutory delay in trial. Lastly learned counsel for the applicant contended that as it is alleged that applicant was present with firearm at the place of incident and on his instigation other co-accused opened fire, this has to be seen that from whose fire son of complainant killed. He added that there are contradictions in the prosecution evidence which create doubt in the prosecution story. To support such contentions reliance is being placed on the cases reported in Qurban Ali v. The State (2017 SCMR 279), Mehrooz and another v. The State and others (2013 YLR 398), Moundar and others v. The State (PLD 1990 Supreme Court 934), Jalal Shah v. Niaz Akbar and 2 others (2018 PCr.LJ 140), Shabbir v. The State (2012 SCMR 354), Abdullah v. The State (1985 SCMR 1509), Gul Hassan Penhyar v. State (1997 SCMR 390), Muhammad Aslam v. The State (1999 SCMR 2147) and Muhammad Ashraf Khan and others v. Muhammad Khan and others (2012 SCMR 356).
5. Learned counsel representing the complainant while opposing the grant of bail to the applicant on statutory delay in trial, contended that all the witnesses are regularly attending the court. He further contended that applicant is main accused as on his instigation murder of son of complainant was committed.
6. Learned Assistant Prosecutor-General, Sindh submitted that applicant is involved in killing of son of complainant and there is sufficient material available which connects the applicant in the crime as on his instigation such crime has been committed. To support his submission he relied upon the case of Ali Hassan Muhammadani v. The State (2014 SLJ 671).
7. It is an admitted fact that the FIR of alleged incident was lodged with the delay of 11 hours of incident and the applicant was arrested on 20.11.2015 and since then he is behind the bars. Perusal of diary sheets reflects that some adjournments have been sought by the defence counsel but those are not sufficient to show that the applicant was/is responsible for inordinate delay in disposal of the case. Further no overt act except instigation has been alleged against the applicant. As regards other criminal cases against the applicant, learned counsel for the applicant filed copies of judgment/orders showing that applicant had been acquitted, which are taken on the record.
8. In our country liberty of individual has been guaranteed by the Constitution beside the fact that speedy trial is inalienable right of every accused person, therefore, even if the provision of section 497, Cr.P.C. in ordinary course is not applicable, the broader principle of the same can be pressed into service in hardship cases to provide relief to a deserving accused person incarcerated in jail for a shockingly long period. An accused person cannot be left at the mercy of the prosecution to rotten in jail for an indefinite period. The delay in the conclusion of trial of detained prisoners cannot be lightly ignored provided it was not caused due to any act or omission of accused. The law laid down by the Apex Court is fully applicable to the circumstances of the case in hand. In the case of Shabeer v. The State reported in 2012 SCMR 354, the Hon'ble Supreme Court with regard to delay in conclusion of trial held that "Accused was arrested on 14.11.2007 and since then he had been in the custody despite framing of charge on 29.07.2008 and no proceedings had been concluded nor there was any reasonable possibility of conclusion of trial in near future, bail was allowed". In the case of Zahid Hussain Shah v. The State reported in PLD 1995 Supreme Court 49, the Hon'ble Supreme Court held that "the bail under the 3rd proviso to section 497(1), Cr.P.C. can be refused to an accused by the Court only on the ground that the delay in the conclusion of the trial had occasioned on account of any act or omission of the accused or any other person acting on his behalf and the bail under the 3rd proviso to section 497(1), Cr.P.C. can also be refused by the Court if the case of the accused fell under the 4th proviso to section 497(1), Cr.P.C. In all other cases the Court must grant bail". In the case of Danish Ahmed v. The State reported as 2012 MLD 1180 (Sindh), a Division Bench of this Court held that prosecution had not established any delay in concluding the trial was attributable to the accused hence the accused was enlarged on bail with directions to the trial Court to conclude trial within four months. In another case of Ziauddin v. The State reported as PLD 2012 Sindh 147, this Court has held that "Trial could not be said to have concluded when three prosecution witnesses were yet to be examined and in such circumstances concession of bail on grounds of statutory delay could not be denied to the accused". Bail to the accused on the ground of delay in conclusion of the trial was allowed and he was admitted to bail. In the same situation dictum as laid down by this Court is that bail on the ground of statutory delay in conclusion of the trial can be refused to the accused by the Court on the grounds that if the delay in conclusion of trial had occasioned on account of an act or omission on the part of the accused or any person acting on his behalf, or if accused was a previously convicted offender for an offence punishable with death or imprisonment for life or, if accused in the opinion of the Court, was a hardened, desperate or dangerous criminal or was accused of an act of terrorism punishable with death or imprisonment for life. The court further observed that when statement of one of the prosecution witness was yet to be recorded, it could not be said that the trial had been concluded. Trial would be deemed to be concluded only when the statements of all the prosecution witnesses had been recorded. Similar observation is made in an identical case decided by the learned judge of this Court i.e. Muhammad Ibrahim v. The State reported in 2012 MLD 1318 (Sindh).
9. In view of above, more particularly in light of the case law mentioned above, the applicant is admitted to bail subject to his furnishing surety in the sum of Rs. 3,00,000/- (Rupees three lacs only) and P.R. Bond in the like amount to the satisfaction of the trial court. The learned trial court is however, directed to expedite the trial, preferably within a period of three months.
MQ/S-6/Sindh Bail granted.