IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA  

Crl. Bail Appln. No. S-  98 of 2018.

Applicant:            Muhammad Moosa, through Mr.Ghulam Shabir Shar, Advocate.

Complainant:       Abdul Karim, through Mr. Muhammad Afzal Jagirani, Advocate.

The State:             Through, Raja Imtiaz Ali Solangi, A.P.G.

Date of hearing:    11.06.2018.

Date of Order:      29.06.2018.

O R D E R

Khadim Hussain Tunio, J:    Through this application, applicant Muhammad Moosa son of Pathan Ogahi seeks his admission to post-arrest bail in Crime No.46 of 2013, registered with Police Station Ghouspur (District Kashmore @ Kandhkot), for offences punishable under Sections 302, 353, 114, 148 and 149 P.P.C.

2.       The allegation against applicant is that on 27.04.2013 he alongwith co-accused Ismail, Mehrab alias Bhooro, Haji, Shafqat Ali, Bashir, Amanullah alias Amano, Mukhtiar Ahmed and Abdul Aziz duly armed with kalashnikovs confronted complainant party and on instigation of Abdul Aziz, the present applicant and co-accused Ismail, Amanullah alias Amano, Haji, Mehrab alias Bhooro, Bashir and Mukhtiar Ahmed fired at Abdul Sattar. The fire of applicant is said to have hit to deceased Abdul Sattar on his head.

3.       Heard learned counsel for applicant and complainant, as well as learned A.P.G appearing for the State and gone through the material available on record.

4.       Learned counsel for applicant empathized on the ground that the learned trial Court has failed to comply with directions of this Court and did not conclude the trial within the period as directed by this Court, and that the applicant is languishing in jail since more than four years without any progress in the trial, therefore, per learned counsel the applicant is entitled for grant of concession of bail. In support of his contentions, the learned counsel placed his reliance upon 1995 PLD Karachi 137, 2003 P.Cr.L.J 1521, 2004 P.Cr.L.J 90, 2003 P.Cr.L.J 73, 1999 SCMR 2147, 2005 P.Cr.L.J 715, 2005 P.Cr.L.J 555, 2003 MLD 19, 2010 YLR 722, 2008 SCMR 1715, 1989 PLD S.C 585, 1987 MLD 1451, 1987 MLD 2005 and 1987 MLD 2328.

5.       On the contrary, learned A.P.G. assisted by learned Advocate for complainant opposed grant of bail to applicant on the ground that, he has been nominated in promptly lodged F.I.R with specific role of making fire upon deceased, which hit on vital part of his body, i.e. head.  Learned counsel for complainant relied upon 1982 PLD S.C. 424, 1995 SCMR 1087, 2010 SCMR 1744, 2005 PLD S.C 364, 2015 SCMR 655, 2006 P.Cr.L.J 1256, 2000 MLD 574, 1990 P.Cr.L.J 685 and 2004 SCMR 1160.

6.       It is matter of record that, on merits bail plea of the applicant has been declined upto level of Hon’ble Supreme Court. His bail application on ground of statutory delay in conclusion of trial has also been dismissed by learned trial Court as well as by this Court. However, this Court while refusing bail to the applicant vide Order dated 09.06.2017 directed trial Court to decide the case within a period of six months’ time, and after such time, the applicant repeated his bail application before trial Court, which has again been dismissed, hence instant bail application has been filed on behalf of applicant again before this Court.

7.       Perusal of impugned order reveals that trial has already commenced and complainant and his witnesses have been in attendance before the trial Court, but evidence could not be recorded for the reason that some of co-accused joined the trial and since legal heirs of deceased entered into compromise with those accused and such process of effecting compromise between parties taken sometime, as such the case could not proceed; however at the moment the case is ripe for recording evidence of witnesses. It is further observed that the directions issued by this Court are not mandatory but directory in nature, as such the accused cannot claim bail on this ground as matter of right.

8.       In case of Nisar Ahmed v. The State and others (PLD 2016 Supreme Court 11), the Hon’ble Supreme Court has held that:-

                   “Non-compliance of directions issued by the High Court to the trial Court to conclude the trial expeditiously or within specified time could not be considered a valid ground to grant bail to the accused”.

9.       The Division Bench of this Court has been pleased to observe in Crl. Bail Application No. D- 817 of 2001 Re: Muhammad Nawaz alias Deno & another Vs. The State that:

“It needs to be clarified that indulgence shown by the superior Courts by issuance of such directions for the trial Court to conclude cases within some specified period are only meant / aimed to expedite proceedings of the cases against the accused and not to arm them with so-called new ground for bail in case of non-compliance of such directions, as vehemently argued by Mr. Muhammad Ayaz Soomro. It will be seen that such a concept is totally alien to any statutory provision. Learned counsel, when asked to refer any provision of law in this context also failed to do so. As observed above in the cases referred by learned counsel also the question of grant of bail to an accused was taken into consideration on the principle of hardship, with reference to the  nature of the offence and the period for which accused had remained in custody without conclusion of trial and not merely due to non-compliance of earlier directions.”

10.              Similar point was again considered and decided by this Court in case of Abdul Qadir Sahar v. The State (SBLR 2004 Sindh 785), wherein it was observed as under:

                   “In the first instance it was argued that failure to get the trial concluded within the period of two months undertaken in C.P. No. D- 739/2003 itself entitled the petitioner to bail. We regret we are unable to agree. It is well settled that such directions could only be treated as directory. In any event the order itself states that upon expiry of the said period the petitioner may be able to apply for bail. It does not state that the petitioner shall acquire a right to be enlarged on bail.”

11.     With regard to cases cited at bar by learned counsel for the applicant suffice to say that there is no cavil with the principle laid down in the referred cases but same are not applicable with the facts and circumstances of the present case and based on different facts and  circumstances of the applicants’ case.

12.     Accordingly, the instant bail application stands dismissed. However, the trial Court is directed to speed-up trial of the case by proceeding with it on day to day basis, submit daily progress report through fax and decide the case within three months. In case of failure the learned trial Court is further directed to submit specific/ detailed report with reasons for non compliance of the directions of this Court through Additional Registrar for perusal of the Court. It is further ordered that, if any of accused creates hindrance to proceed with case the trial Court may appoint counsel on State expenses and proceed with the matter.

                                                                JUDGE