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Criminal Miscellaneous No. 3377/B of 1977, decided en 21st August 1977.

‑‑ S. 498‑Delay‑Contention that petitioner, accused of murder, was in confinement for last 17 months and his trial might commence after 2 years, he was entitled to bail‑Contention repelled‑Delay i' In trial of a murder case, held further, not a ground for grant of bail‑Bail declined, in circumstance.‑[Delay].

Barkhurdar v. Liaqat Ali and others P L D 1977 S C 434 and Riasat Ali arid another v. The State P L D 1977 S C 480 ref:

Bashir Zafar for Petitioner.

Sh. Muhammad Islam for the State,

The F. I. R. was recorded at Police Station Karianwala, District Gujrat on 12‑3‑1976 at 8‑15 a.m., regarding an incident that had taken place at khuftanwela on 11‑3‑1976, at the statement of Saddar Din, wherein it is alleged that the. Complainant alongwith his brothers and another, were returning to their home after offering Isha prayer, when they found that Nasir Javaid armed with a hatchet and his younger brother Muhammad Riaz armed with a sofa were standing in gall outside their house. Lai Khan was preceding the party. As soon as he came near the petitioner and his brother, he was challenged by the petitioner (to avenge an earlier insult) and immediately inflicted a hatchet blow on the head of Lai Khan from the but side and second blow was inflicted by Riaz on the head of Lai Khan. Lai Khan expired at midnight as a result of these injuries. The background of the incident is that the petitioner bad made some indecent overtures towards Mst. Kaniz Begum, daughter‑in‑law of the deceased, and the deceased abased the petitioner on that account.

2. Learned counsel for the petitioner contends that‑‑

(a) the attack by the blunt side of the hatchet (on the deceased) would negate the intention of murderous assault on the part of the petitioner ;

(b) F. I. R. has been lodged after inordinate delay, which has not been explained by the prosecution;

(c) Petitioner is in confinement for the last 17 months and according to report of the learned sessions Judge his trial may commence after about 2 years (the date of report is 18‑8‑1977). It means that in the case of petitioner, about 3J years would elapse before his trial may commence.

3. Whether the petitioner had any murderous intent when he inflicted blow from the blunt side of the hatchet on the head of the deceased is a matter that will be determined by the trial Court. Similarly delay has been explained in the F.1. R. viz, that Lai Khan was taken home in injured condition where he expired at midnight. Police station is 7 miles away from the place of occurrence. Therefore, the complainants thought it proper to lodge the F. I. R. in the morning. This question will also be determined by the trial Court. The only question is whether about 3; years delay in the trial that may take place in this case is, a ground for the grant of bail. It has been observed in Barkhurdar v. Liaqat AU and others (P L D 1977 S C 434) that delay in murder cases, per se is not a ground for the grant of bail. Delay must be of a nature that amounts to abuse of process of Court. The judgment in this case was given on 21‑3‑1977 (Cr. A. 119 of 1976, decided on 20‑12‑1976) Riasat All and another v. The State (P L D 1977 S C 480) was also noticed. Latter was a case of circumstantial evidence (whereas in the present case there are witnesses who had seen the occurrence) and the statement of an approver had connected the petitioner with the commission of offence. In that connection Supreme Court had observed that though delay per se is not a ground for allowing bail but delay of 4 years in commencement of the trial is indeed unconscionable and would entitle the petitioner to be enlarged on bail as such a delay amounts to abuse of process of the Court. The ratio of Riasat zip's case is not attracted in the present case. There is no merit in this petition, which is dismissed.

Petition dismissed.

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