Find a Lawyer

Criminal Bail Application No. 335 of 1978, decided on 22nd April 1978.

--- S. 498-Delay-Inordinate delay in trial-Amounts to abuse of process of law-Petitioner, accused of murder, assigned specific part in F. I. R.-Reasonable grounds, held, exist to believe petitioner guilty of offence alleged against him-Bail declined, in circumstances.-- [Delay-Abuse of process of law].

Abrar Ahmad's case P L D 1974 S C 224 ref.

Nooruddin Sarki for Applicant.

Ghulam Ali Agha for A: G. for the State.

Applicant Bhooro is facing trial alongwith one Allahdino for offences under sections 309/34, 392/397, P. P. C. read with 13-D of the Arms Ordinance, in the Court of Additional Sessions Judge, Kandhkot, District Jacobabad. The incident is alleged to have taken place on 9-3-1976 at sunset time, when the complainant Hasil accompanied by his sons Khuda Bux, Ali and one Dhani Bux, were returning after selling firewood at Ghoupur. They were coming on the bullock carts by the cai t track. Khuda Bux was driving his bullock cart and was leading others. Ali's cart was following. The Complainant Hasil was sitting in Ali's cart. When they reached near the village Mohammed Hayat at about 7-30 a.m. (sunset time), it is alleged that the applicant Bhooro, his brother Allahdino and his father Soonharo, all armed with guns, alongwith one Kuraro who had a hatchet in his hand, emerged from the jungle. All the accused stopped the bullock carts driven by Khuda Bux, Ali and Dhani Bux. Soonharo is alleged to have challenged and asked Ali that they have come to take the revenge of the previous fight. By saying so, the applicant Bhooro and his father Soonharo fired two shots at Khuda Bux, which hit him and he fell down dead. Accused Allahdino, on the gun point, detained others, who were accompanying the deceased Khuda Bux; whereas accused Kuraro, having a hatchet in his hand, took the bullocks from the cart of Khuda Bux and drove them away. Due to fear, the party of the deceased Khuda Bux, could do nothing, as they were empty-handed. On cries being raised by them, the villagers from the neighbourhood came there. In the meanwhile, the accused persons escaped. The complainant Hasil, father of the deceased Khuda Bux, reached the Kandhkot Police Station and lodged the report on 10-3-1976 at 10 a.m. covering the distance of about 14 miles. After completing the investigation, the Police, surprisingly, placed the accused Soonharo and Kuraro in Column 2 and did not submit the charge-sheet against them in the Court to stand their trial. Finding no other alternative, the complainant was compelled to file the direct complaint in the Court against them.

I have heard Mr. Nooruddin Sarki, in support of the application for the grant of bail. His main contention is that the police, after due investigation found Soonharo and Kuraro innocent and had disbelieved the version of the complainant to that extent against these two accused. He has therefore submitted that the evidence against Soonharo and Kuraro was false, hence the same evidence against the applicant also is false and cannot be relied upon. He has further submitted, while referring to the case diaries that the case is not preceding for the last over about two years, and the accused are not being produced from the jail custody and no witnesses are being examined in the Court. He further argued that the evidence in this case is tainted and the independent evidence, which was available was not collected. Finally he has argued that no recovery of any fire-arms or the hatchet or other incriminating article, were secured by the police.

The learned counsel appearing for the State has opposed the bail on the ground that the applicant is named in the F. I. R. and specific part has been assigned to him. He has further argued that the ocular testimony of the complainant and other eye-witnesses is corroborated by the medical evidence, and if the applicant is allowed bail at this stage, it would prejudice the prosecution case.

I have been taken through the F. I. R. as well as, the charge-sheet by the learned counsel Mr. Nooruddin Sarki. 1t is noteworthy that in spite of the complainant having assigned the specific part to Soonbaro and Kuraro in the F. I. R., the police decided that there was no sufficient evidence against them.

I have perused the case diary in order to appreciate the point stressed by the learned counsel for the applicant about the delay in the proceedings of the case. On most of the dates, the applicant was not produced from the jail custody and on other dates the case was adjourned for want of presence of the witnesses. It is indeed regrettable that the learned trial Judge should have given so much latitude to the prosecution agency to take their sweet time in proceeding with the case. If such an attitude is allowed to continue, no case involving serious offences like murder will be disposed of expeditiously. The trial Courts should bear in mind the case of Ahrar Ahmed and others (P L D 1974 S C 224) where, it was held that inordinate delay in prosecution, amounts to abuse of the process of law. The learned trial Judge would, in future, see that the prosecution agency is not given so many adjournments, by which the accused are subjected to be lodged in jail indefinitely. If the witnesses are not in attendance, coercive process should be issued. The charge-sheet was submitted in the Court on 14-6-1976 and the case was received in the Sessions Court on 15-6-1976 and not a single witness, so far, has been examined. One does not know, when it will start.

Under the circumstances, I would direct that this case should be given priority and should be proceeded with, expeditiously. If evidence of incriminating nature comes on the record, the learned Judge would see to it that proper legal procedure is adopted in determining to what extent each of the accused is responsible in the commission of the crime. On examination of the police papers, I find that the police, by placing the accused Soonharo and Kuraro in Column No. 2, had given the judgment of acquittal, is spite of the specific allegations against them by mentioning their names, by the complainant, in the F. I. R. which version is stated to have been supported by the other eye-witness. It is necessity that the copy of this order be sent to the S. P., Jacobabad as well as to the I.-G. Police, Sind so that they would get the case legally examined, how the Investigating Officer, in this case, had placed the accused Soonharo and Kuraro in Column No. 2. Since the applicant is assigned the specific part in the F. I. R. I am of the view that there are no reasonable grounds for believing that the applicant is not guilty of the offence, as is alleged against him.

Under the circumstances the bail application is rejected at this stage.

Petition dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.