Muhammad Nawaz @ Bajo (Applicant) VS The State (Respondent)

Cr

Cr. Bail Application No.S-311 of 2009.

For hearing.

22.6.2009. Mr.

Abdul Haq G. Odho advocate for the applicant.

Mr. Ali Hyder Dareshani advocate for the State.

Applicant seeks bail in crime No.37/2003 under section 302, 324, 148, 149, 337-F(iii), 337-F(v) PPC of Police station Baberloi.

The facts leading to the present bail application are that complainant Abdul Rehman Phulpoto lodged FIR on 21.4.2003 at 1300 hours stating therein that about 6/7 months back one Dost Muhammad @ Dosoo s/o Ali Dino Phulpto was murdered, after his murder, Ali Dino Phulpoto migrated from his village and used to reside at Bukar, Muhammad Nawaz @ Bajo used to say that you have got killed my brother, he will remain see us. Today I, my brother Koural aged about 26 years, and Naimatullah s/o Muhammad Paral, were together after releasing the water at the lands and were returning back, the day was hot we all three came and sit in the otaq of Haji Hameed Gambher. At about 3 hours namely Muhammad Nawaz @ Bajo s/o Ali Dino Phulpoto, duty armed with k.k, 2, Akram Phulpoto, duly armed with k.k, 3. Hadi Bakhsh Phulpoto, duly armed with Repeater, (4) Kouro Phulpoto duly armed with gun, (5) Ali Dino Phulpoto armed with gun, came there, while coming Muhammad Nawaz @ Bajo challenged us and asked that you had killed my brother Dost Muhammad and while saying so, the persons duly armed with k.ks directly fired upon us with intention to commit murder, which hit to my brother Koural and Naimatullah, they raised cries and fallen on the ground. I raised cries of murder, murder, on the cries and fire arm reports my brother Meeral and cousin Akbar s/o Muhammad Nawaz and Waranda came. Meanwhile, remaining 4 accused also made direct fire upon us, with intention to commit murder, then while seeing Meeral and Akbar coming, all five accused ran away towards southern side with weapons inside the garden. We saw that my brother Koural sustained fires on stomach and chest and was died, and Naimatullah sustained fires on left arm and left feet and was lying injured. Then left Meeral and Akbar for protection of dead body of brother Koural, took injured Naimatullah, now have appeared and making complaint that the above accused, in furtherance of their common object, attacked and rioted, due to old enmity, directly fired with k.ks. Repeater and guns, killed my brother and also caused injuries to Maimatullah.

Heard the learned counsel for the applicant as well as learned State counsel.

The bail application was moved first before the trial court which was dismissed in the year 2006. Later on the applicant moved another bail application before this court which was dismissed vide order dated 10.11.2008 with the direction to learned trial court to take proper efforts for effecting the service upon complainant and p.ws and ensure the expeditious trial of applicant. The trial court shall be required to submit the progress report in the case after expiry of three months and the applicant will be at liberty to move the learned trial court afresh for bail, after expiry of said period. Learned counsel for the applicant states that before Cr. Bail Application No 266/2008 bail application oe bail application No.379/2006 was filed on 27.12.2006 against the order of learned trial court. By which order the trial court was directed to conclude the trial within 6 months. Thereafter even expiry of six months the trial has not been concluded and the bail application was moved and the same was dismissed by the trial court. Against such order the applicant filed Cr. Bail Application No266 of 2008 before this court which was dismissed on 10.11.2008 with the direction to conclude the trial within 3 months and after expiry of three months the applicant shall be at liberty to moved a fresh bail application. The applicant after expiry of three months moved fresh bail application and the learned trial court neither proceeded the case nor considered the bail application and dismissed the same vide order dated The applicant being aggrieved against rejection of bail application filed the present application before this Court and also filed a report of learned trial court in which the learned trial court i.e. IIIrd Additional Sessions Judge Khairpur informed that process was issued against the p.ws but they were not served and the process server reported that the complainant and the p.ws are absconders in crime No.139/2004 of P.S Baberloi they have shifted away to some unknown place. The statement of the process server H.C Ali Nawaz was recorded on 6.6.2007 who has also produced the copy of list of absconders of Baberloi police station during the year 2007 wherein complainant and p.w. Akbar were shown as absconders. Learned counsel submits that the applicant remain in jail for 4 years and 9 months and there is no chance that his case will be proceeded in near future. He also submits that there is delay in conclusion of trial without part of the accused and the trial court has been has not concluded the trial and complainant and p.ws are absconders. Leaned counsel for the applicant has relied upon 1999 SCMR 2147, and 1997 SCMR 436. In the case of Ashok vs. The state reported in 1999 SCMR 2147, the Hon’ble Apex court has observed as under:-

“Despite the positive direction of High Court trial of accused was

not concluded by the trial court within three month and the Investigating Officer was yet to be examined in the case. Accused was not in any way responsible for the delay in conclusion of the trial. On the undertaking given by State counsel that trial of accused would definitely be concluded within one month the petition for leave to appeal was concert into appeal and the trial court was allowed one month’s time to conclude the trial, failing which on the expiry of one month’s period accused would be deemed to have been granted bail and would be enlarged on bail by the trial court.”

In the case of Muhammad Aslam vs. The State reported in 1999 SCMR 2147, the hon’ble apex court has held as follows:-

“Despite of direction of High Court trial against the accused had not been completed by the trial court within the specified period. Prosecution was unable to give any explanation for non-compliance of the said order of High Court. Petition for leave to appeal was converted into appeal which was allowed and the accused was admitted to bail in the circumstances.”

The applicant/accused is not responsible for delay in conclusion of trial. In the FIR he was shown to have armed with K.K whereas recovery of T.T pistol has been effected from him.

Accused could not be kept in jail for indefinite period as delay in conclusion of trial was being caused by prosecution witnesses failure to appear before the court. Enmity is admitted, no progress is forth coming in near future. Despite of directions of this court trial against the accused had not been completed by the trial court within the specified period. Prosecution was unable to give any explanation for non-compliance of the said order of this court.

For the above reasons, the applicant is admitted to bail subject to furnishing the solvent surety in the sum of Rs.400,000/- (Rupees Four Lacs) and P.R bond in the like amount to the satisfaction of the trial court.

However, the observations made herein above are tentative in nature for the purpose of only disposal of bail application and may not influence the mind of trial court which is free to appraise the evidence strictly according to merits of the case.

Cr. Bail Application No.311 of 2009 stands disposed of.

JUDGE.

M.F.