IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Crl. Bail Appln. No. 637 of 2008.
Order with signature of Judge
Mr. Altaf Hussain Surhiyo, Advocate for applicant.
Mr. Athar Abbas Solangi, Advocate for complainant.
Miss Rubina Dhamrah, the State counsel.
13.05.2009. O R D E R
Khadim Hussain M. Shaikh, J-. Through this application, applicant seeks post arrest bail in crime No. 77/2004, for offences under section 302, 34, 147, 148 P.P.C of P.S Valeed, Larkana, after his bail plea has been declined by the learned Court of Vth Additional Sessions Judge, Larkana, vide order dated 28.03.2008.
2. Brief facts of the case as narrated in F.I.R No.77/2004 lodged by complainant Nazir Hussain s/o Bukhshal Khan Chandio at ps Waleed on 27.09.2004 are that on 24.09.2004 at 8.30 p.m complainant’s brother Abdul Rasheed went with his friend Arbab Mugheri and an unknown person from his shop. As Abdul Rasheed did not return home, hence on the following day complainant and his brother Zamir Hussain started his search and during such search, Haji Shah Bux s/o Ali Mohammad and Mohammad Achar s/o Haji Gulsher both by caste Chandio met and informed them that on 24.09.2004 at about 11.00 p.m Arbab Ali Mugheri and four unknown persons committing murder threw dead body of Abdul Rasheed in Rice Canal near Bus Stand. On 26.09.2004 in the morning time, the complainant party found dead body of Abdul Rasheed having hands and legs tied, from Rice Canal in front of Linar Hospital. After post-mortem and burial of dead body of deceased Abdul Rasheed, the complainant lodged his FIR on 27.09.2004 at P.S Waleed against Arbab Ali and four unknown persons.
3. The applicant Ali Dino Junejo was arrested on 14.10.2004 and his identification parade was held on 24.10.2004 that is to say after one month of the incident and after nine days of arrest of the applicant. After investigation the applicant was sent-up with challan to stand his trial.
4. After rejection of first bail application of the applicant by the learned Trial court, this court vide order dated 31.08.2005 dismissed bail application of the applicant. Again after 2 ½ years of the arrest of the applicant the bail application was repeated before the learned trial Court, which was dismissed and then the bail application was filed before this court, which was disposed of with the specific directions to the learned Trial Court to conclude the prosecution side within three months and final disposal of case within five months from the date of order, vide order dated 19.06.2007. Record reflects that after the said directions of this Court the prosecution has examined Nazir Hussain Chandio, Mohammad Achar and Zamir Hussain on 12.09.2007, and then ASI Akhtiar on 17.10.2007, thereafter no other witness was examined and now the Court is lying vacant since 02.07.2008.
5. The learned advocate for the applicant has mainly contended that the applicant was arrested on 14.10.2004 and since then he is continuously in custody, that directions of this Court given to the learned trial Court for conclusion of the trial within five months vide order dated 19.6.2007, have not been complied with and the delay is not attributed to the applicant and/or his counsel he, therefore, prays for grant of bail to the applicant. He has placed his reliance on the case of Mohammad Aslam v. The State (1999 SCMR 2147), wherein the Hon’ble apex Court admitted the petitioner to bail on the ground that despite directions of High Court Trial against the accused had not been concluded by the trial Court within specified period.
6. Learned advocate for the complainant contends that hereinafter the complainant side will not cause any delay and he states that he will himself procure the attendance of remaining prosecution witnesses before the trial Court.
7. Learned State counsel has conceded to the grant of bail to the applicant.
8. I have carefully considered the arguments advanced by the learned counsel for the parties and have gone through the material placed before the court, I find that, the applicant was arrested on 14.10.2004, and since then he has all along remained in custody and has completed the period of more than four and half years in custody, lastly this Court disposed of the bail application of the applicant with specific directions to the learned trial Court to conclude the trial and finally dispose of the matter within five months vide order dated 19.6.2007, and still the case is pending though the period of more than one year and eight months has elapsed to the directions of this Court. Further more the court of Vth Additional Sessions Judge, Larkana, where the above case is pending, is lying vacant since 02.07.2008.
9. In view of what has been discussed above I am of the considered view that the applicant has made out his case for concession of bail and following the dictum laid down by the Apex Court in case of Mohammad Aslam v. The State (supra), the bail is granted to the applicant in the sum of Rs.300,000/- (Three lacs), subject to his furnishing solvent surety and P.R bond in the like amount to the satisfaction of the learned trial Court. The bail application is allowed.