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Criminal Miscellaneous No. 338/B of 1973. decided on 23rd February 1973.

‑‑‑‑ S. 498‑Bail‑Commitment proceedings completed in 21 years-- Matter dealt with by three different Magistrates, 35 dates of hearing fixed but only 7 witnesses examined and 10 still remaining to be examined‑Magistrate seized of case having examined only one witness during a period of 5 months‑Prosecution witnesses not present on most dates of hearing but no coercive steps taken to secure their attendance‑Undertrial prisoners, held,, could not be kept without trial for inordinately long period without sufficient justification ‑‑Bail allowed‑Penal Code (XLV of 1860), S. 302/366.

Manzoor Khan v. Kamir 1972 S C M R 207 rel.

‑‑ S. 498‑Bail‑Leisurely steps in filing challan, tardy aced halting production of evidence‑ or seeking unnecessary adjournments‑To be strongly deprecated.

Riasat Ali v. Ghulam Muhammad P L D 1968 S C 353 rel.

D. M. Awan for Petitioner.

Rana Maqbool Ahmad for the State.

This is an application by Falak Sher and Maqbool Ahmad, under section 497; 498, Cr. P. C., for the grant of bail. They are accused of offences under sections 148 and 302/366/149, P. P. C. The two petitioners and five others were named in the F. I. R. They are said to have attempted to abduct Mst. Bakhan while armed with deadly weapons and although they did not succeed in their attempt, Suleman the brother of Ghulam complainant was killed in the incident. During the investigation six other persons, not mentioned in the F. I. R. were included as accused persons. Out of them five were allowed bail but the sixth, namely, Hussain Bakhsh, is not traceable. Out of the persons named in the F. I. R. four were let off by the police during the investigation, as having been found innocent. Another person, namely, Ghulam Sabir, who is said to have fired the fatal shot, is absconding. Falak Sher petitioner is said to have raised lalkara and instigated the others to shoot. He is also said to have dragged Mst. Bakhan, who was his divorced wife. Maqbool Ahmad petitioner, who was armed with a gun is said to have fired in the air while leaving the spot. Nobody is alleged to have been injured by the fire shot.

2. It is urged by the learned counsel for the petitioners, inter alia, that there has been inordinate delay in the completion of the commitment proceedings, Twenty‑six witnesses in all were cited by the prosecution out of which nine were given up anti only seven have been examined. The occurrence took place on 4‑7‑1970 and the challan was submitted on 10‑11-1970. It is now February, 1973. More than two and a half years have passed since the inquiry is pending before the learned committing Magistrate and 10 prosecution witnesses still remain to be examined. The learned counsel for the petitioners urged that this delay was inordinate and that the petitioners are, in no way, responsible for it and that they are, therefore, entitled to the grant of bail on this ground alone. He submitted further that although the petitioners are named in the F. I. R. yet the fact that four other persons named in the F. I. R. were let off by the police having been found innocent casts serious doubt on the prosecution version. Moreover, the parts attributed to the petitioners are minor one and no one is said to have caused any injury to the deceased.

3. The learned State Counsel admitted that there had been a delay of two and a half years in the completion of the commitment proceedings. He explained that the matter had been dealt with by three different Magistrates. In all there were 35 dates of hearing in which only 7 witnesses have been examined and 10 P. Ws. still remain to be examined the State Counsel submitted further that the learned Magistrate before whom the matter is pending at present is seized of it since 18‑9‑1972, but he has examined only one witness uptil now. The State Counsel also admitted that on most of the dates of hearing the prosecution witnesses were not present but the Inquiry Magistrate has not taken any coercive measure for obtaining their attendance.

4. Having considered the above‑noted facts, I feel that the inquiry has not proceeded with satisfactory speed. The petitioners have been behind the bar for about two years and seven months and it is admitted that the prosecution agency failed to produce its witnesses on most of the dates. It is held by the Supreme Court in Manzoor Khan v. Kamir (1972 S C M R 207) that:‑

"It is not the intention of the law to keep undertrial prisoners, including those charged with capital offences without trial for inordinately long periods without any satisfactory explanation or reason to justify that action."

Moreover, leisurely steps taken in filing the challan, tardy and halting production of evidence or seeking of unnecessary adjournments, except those necessitated by force of circumstances must be strongly deprecated. (Ref: Riasat Ali v. Ghulam Muhammad (P. L D 1968 S C 353)). The observations of the Supreme Court in the above‑noted authorities are fully applicable to the facts of the present case and I feel that the petitioners are entitled to the grant of bail for this reason alone. I need not, therefore consider, the other contention raised by the learned counsel for the petitioners. They are granted interim bail in the sum of Rs. 10,000 (Rupees ten thousand) each with two sureties each in the like amount to the satisfaction of the Resident Magistrate, Pakpattan.

Bail allowed.

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