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Criminal Miscellaneout3 No. 6346 of 1969; decided on 14th November 1969:

S. 497(2) & (5)--[Murder Case;-Bail, cancellation of-Trial before committing Magistrate inordinately delayed partly because of absence of Presiding Officer and partly for evasive tactics of prosecution witnesses-Father of deceased an eye-witness to occurrence, deposing accused to be innocent-Case, held, not it for cancellation of bail and covered by S. 497'(2), Criminal Procedure Code, 1898.

Muhammad Nawaz and others v. The State 1968 S C M R 683

Riasat Ali v. Ghulam Muhammad P L D 1968 S C 353 and Muhammad Zikariya alias Papu v. The State 1969 P Cr. L J 356 rel.

Ch. Hamiduddin for Petitioner.

Azhar Hafeez for the State.

M. B. Zaman for Respondents.

Sultan Ali has filed this petition under section 497(5), Cr. P. C. for cancellation of bail granted to Bahawal Bux, Ghulam Qadir, Muhammad Sadiq, Sana Ullah, Ghulam Nabi, Zafar, Ata Muhammad, Muhammad Bashir and Barkat Ali, in all nine respondents, by the Additional Sessions Judge, Qujrat, in a case under section 302/149 read with section 148, P. P. C., now pending in the Court of Mr. Jamshed Ahmad, Magistrate 1st Class, Gujrat.

2. Briefly summarised the case of the prosecution is that at 4.00 a. m. on the 14th of March 1969, all the accused who were armed with deadly weapons, formed themselves into an unlawful assembly and in the prosecution of that unlawful assembly attacked Nazir Ahmad son of Allah Ditta and another Nazir Ahmad, a refugee, while they were asleep on cots at the Bahak of Sultan Ah, the complainant. As a result of the several blows inflicted by the accused both Nazir Ahmad succumbed to the injuries at the spot. '

3. After the usual investigation the case was submitted in the Court of Mr. Mansoor Azhar Farooqi, Magistrate 1st Class, Gujrat, by or before the 22nd of May 1-969. The accused appeared in his Court on the 4th of June 1969, and the case was adjourned to the 11th of June 1969, and four prosecution witnesses were summoned for that date. On the 11th of June 1969, it was reported that the prosecution witnesses refused to accept service whereupon the learned committing Magistrate issued bailable warrants for the 20th of June 1969. On the 20th of June 1959, the prosecution witnesses did not turn up despite the warrants. Non-bailable warrants were issued for the 4th of July 1959. On that date the warrants were not received back and the learned Magistrate repeated the non-bailable warrants for the 19th of July 1969. On the 19th of July 1969, the Presiding Officer was transferred but the prosecution witnesses did not turn up. The case was adjourned to 30-7-1969, 4-8-1969, 19-8-1969, 3-9-1969, 12-9-1969 and 26-9-1969 but no Presiding Officer was available nor the case was transferred to the file of any other Magistrate to proceed with this murder case. On the 3rd of November 1969, the Magistrate took charge. On that date eight of the prosecution witnesses were present but the accused stated before him that they had to appear in the High Court on that date as notices were issued by this Court in the application for cancellation of bail, therefore, the case was adjourned to the 12th of November 1969.

4. On the record the learned counsel for the respondents leas placed an attested copy of the complaint under section 107, Cr. P. C., and the statement of Munshi Khan, father of one of the deceased Nazir Ahmad. The complaint and the statement show that Munshi Khan stated that the accused in this case were innocent and that the complainant Sultan Ali was threatening him to give false evidence against them.

5. The learned Additional Sessions Judge granted bail to the respondents mainly on the ground that inordinate delay has been caused in the prosecution in producing the prosecution witnesses before the committing Magistrate and in view of the deliberate refusal on the part of the prosecution witnesses to attend the Court in spite of having been served. Learned counsel for the petitioner-complainant cited Muhammad Nawaz and others v. The State (1) where their Lordships of the Supreme Court observed that "the mere fact that there has been inordinate delay in the disposal of a criminal case, is not in itself a ground for granting bail to persons accused of having committed offences punishable with death or transportation for life, under section 302/34,

6. Mr. M. B. Zaman, learned counsel for the respondents cited Riasat Ali v. Ghulam Muhammad (2) where Mr. Justice Sajjad Ahmad observed

"Inordinate delay in the prosecution of a case, if not explained by the prosecution amounting to an abuse of the process of law can be considered as a ground for bailing out an accused person even in a murder case depending on the nature of the delay and the circumstances that have caused it. The prosecution is expected to proceed with its case with all de patch eliminating every avoidable delay in order to bring it to 'a close and thus to determine the fate of an accused person which hangs in the balance as long as the proceedings do not terminate one way or the other.' The prosecution cannot be permitted to enlist the will of the Court on its side directly or indirectly in prolonging the worries and harassment of an accused person which are inevitably caused by his protracted detention without trial. Leisurely steps taken in filing the challan, tardy and baiting production of evidence or seeking of unnecessary adjournments, except those necessitated by force of circumstances must be strongly deprecated."

7. Yet in another case Muhammad Zikariya alias Papu v. The State (3) their Lordships of the Supreme Court granted Leave to Appeal and admitted the accused to bail as the challan was not put up in Court even after six months of the occurrence.

8. In the case in hand the learned Additional Sessions Judge was right to observe that the prosecution was to be blamed for the delay. In addition, I find that the absence of the Presiding Officer was a further cause for the delay in the trial of this case. The other factor which had weighed with me in not to cancel the bail of the accused-respondents is that Munshi Khan, who is an

(1) 1968 S C M R 683 (2) P L D 1968 S C 353

(3) 1969 P Cr. L J 356

eye-witness and father of one of the deceased, had deposed before the magistrate at Gujrat that the accused were innocent. In this context it might be said that the case of the respondents is covered by section 497 (2), Cr. P. C.

9. Considering all the circumstances of the case, in my opinion, it is not a fit case where the bail of the accused respondents should be cancelled. The application fails and in dismissed accordingly.

Application dismissed:

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