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Criminal Bail Application Nos. 473 and 491 of 1972, decided on 11^th December 1972.

‑‑---S. 498‑Trial not concluded pursuant to undertaking given by Assistant Advocate‑General, for one reason or other‑Only three witnesses remained to be examined and trial about to conclude‑Held, delay cannot be a factor for releasing accused on bail in circum stances.‑[Bail].

Hasan Ali A. Rahman and S. Sami Ahmed for Applicants.

Assistant A.‑G. for the State.

Date of hearing : 4th December 1972.

This order will dispose of Criminal Bail Applications 473 and 491 of 1972. In the former Ashfaq Ahmad and Mohammad Abbas have applied, for bail and in the latter, Chowdhry Ahrar Mohammad alias Shola Aswani. In both the applications, the ground is of delay in the conclusion of the trial. In the earlier applications also the same ground of delay was taken but I had rejected them since the delay could not be solely attributed to either the Court or the prosecution agency. Vide order dated 23rd October 1972, I had deferred the hearing of these applications on the undertaking given by the Assistant Advocate General that the trial will conclude within a month and on this promise the learned counsel for the applicants stated that the hearing be put off for a month. They were again posted for hearing on 4th December 1972. On that date, the learned counsel for the applicants pressed the point of delay and referred me to the order sheet subsequent to 23rd October 1972, ors which date I had passed the order deferring the hearing of the applications. There were in all six hearings. The first was on 24th October 19 2. It was adjourned to 31st October 1972 as neither the accused were brought from the Central Jail nor was Mr. Ahsanullah Qadri, one of the defence counsel, present, though the witness, Muhammad Ali who was to be cross‑examined by him, was present. On 31st October the case could not proceed as the trial Judge was on leave. On the next date of hearing, VIZ., 7th November, the accused were not brought from jail while the defence counsel were present and the A. P. P., Mr. Zia G. Shaikh, had a geared earlier in the day. P. W. Muhammad Ali was also, present but could not be cross‑examined for that reason. On 11^th November the accused were again not brought from jail as the police escort was engaged at Landhi in connec tion with the labour disturbance though the witness was present. On 27th November the case could not proceed for "all" the accused were not brought from jail. Applicant Shola Aswani was also not produced from Civil Hospital where he is receiving treatment. The case was then adjourned to 30th November, on which date it could not proceed because Mr. Qadiri was not present and the witness could not be cross‑examined. He is the only eye‑ witness left for his cross‑examination.

2. The learned Assistant Advocate‑General has stated that in all three witnesses, namely the Tapedar, S. H. O. and the Magistrate, before whom identification was held, remain to be examined. It is true that the trial has not concluded pursuant to the undertaking given by the Assistant Advocate General for one reason or the other, but since there now remain only three witnesses to be examined and the trial is about to conclude, delay cannot be a factor for releasing the applicants on bail. It is not a case where no progress has been made because of the non‑examination of the witnesses in which case delay can be a relevant factor. Bail is refused and the applications thus stand dismissed.

Petition dismissed.

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