1982 P Cr (PLP)

Sh. Riaz Ahmad,-A.-G. and Shahid Iqbal, Asstt. A.-G. for the State. Bashir A: Mujahid for the Complainant. This is an application for bail in a case under section 307 read with sec tion 34, P. P. C. registered on 8th October, 1980 at Police Station, Saddar, Kasur. The challan was put in Court on 29th January 1981. On merits this Court rejected the bail application of the present petitioner on 14th December, 1980 vide Cr. M. No. 4144/B of 1980.

2. The present application was submitted on the ground that ever since the rejection of the previous bail, application no step has been taken by the prosecution i0 the trial of the case. Notice was issued to the State. The learned Advocate-General assisted by Mr. Shahid lqbal Assistant Advocate-General is present. Mr. Muhammad Jamil, section 30, Magistrate, Kasur, i is present. Mr. Muhammad Ashraf P. 1. is also present who has explained the inordinate delay in the trial of this case.

3. On 11th February, 1981 copies of the statements recorded under section 161, Cr. P. C. were handed over to the accused and the case way adjourned to 26th February, 1981. Formal charge was framed anti evidence was summoned for 10th Marc), 1981. The case was adjourned on several dates, namely, 24th March, 1981, 1st April 1981, 13th April 1981, 22nd April, 1981. 30th April, 1981, 12th May; 1981, 14th May, 1981,18th May 1981 and 25th May, 1981. 4 The Magistrate, while recording the evidence of the complainant summoned the two accused 'mentioned in Column No. 2, on 15th June, 19S' These two persons went in revision before the Additional Sessions Judge against the order of the Magistrate and it is submitted that the revision petition is still pending.

5. Irrespective of the fact that the learned Magistrate summoned the two accused after lapse of pretty long time, on several dates he did not proceed with the matter, for, either the prosecution did not produce the witnesses or on three occasions the Magistrate was not available once on leave and twice he had to appear before the Sessions Court at Jhang. The strange phenomena in this case is that the accused who were in Jail, which according to the learned Advocate-General is adjacent to the Court premises were not produced on 12th May, 1981 and 25th May, 1981. The reason given by him is that special escort was not available and earlier there had been some incident with the Police van. The prosecution and the Magistrate have not taken any steps for the production of the accused on these dates, for, the accused could not be at fault if they are in the judicial custody and are not present in, Court. These are serious lapses on the part of the prosecution as well as the Magistrate in the trial of cases which has become the routine practice in the Province of the Punjab. On an earlier occasion from the same District the matter is being looked into by the President of Pakistan. Justice delayed is -justice denied. There is a clamour in the public as well as amongst the official circle that the Courts are not properly func tioning and there is inherent defect in the system. From the, facts mentioned above it is quite obvious as to who is at fault and this should be an eye-opener and a case where proper steps should be taken. The learned Advocate-General undertakes that he will bring this matter to the notice of the Provincial authorities for necessary action.

6. The delay per se is no ground for grant of bail, but the circum stances in the instant case clearly warrant that the accused cannot be deprived of liberty except by due process of law and this is obviously a failure in the performance of duty. Proviso 3(a) to subsection (1) of section 49.7, Cr. P. C. empowers the Court to enlarge a person on bail if in the trial of that case a year has elapsed the exercise of this jurisdiction does not curb the power of this Court under section 497 Cr. P. C. to grant bail at any stage. Be that as it may, a good ease has been made out in the instant case for the grant of bail to the petitioner. He shall be released on bail provided he furnishes a security in the sum of Rs. 10,000 (Rupees ten thousand) with two sureties each in the like amount to the satisfaction of the trial Magistrate. Bail allowed.