P L D 1984 Supreme Court 1 (PLP)

ASLAM RIAZ HUSSAIN, J. -Muhammed Yaqoob is accused alongwith some others of offence under section 302, P. P. C. The F. I. R. was recorded on 8-8-1981 and the petitioners were arrested after. _ about 22 days on 2-9-1981. The case was sent up for trial to the Military Court but on an application by some of the accused-persons it was returned for trial to the ordinary Criminal Court on 3-7-1982. The case was then sent up by the learned Magistrate for trial to the Court of Session, Gujranwala. It was received in the Court of the learned Additional Sessions Judge on 16-11-1982 whereafter it was fixed for trial on 14 different dates for recording of evidence but had to be adjourned for one reason or the other. On some of the dates one or the other accused could not appear due to illness and on some dates some of the accused were not brought from the jail, with the result that the trial has not been concluded yet. The petitioner filed an application for bail before the High Court on 1-9-1983 on the ground of delay in the completion of the trial. It was urged before the High Court that the accused were arrested on 2-9-1981 but the .trial has not yet been completed although a period of more than 2 years has passed and the petitioner was, therefore, entitled to bail as a matter of right under. section 497 (1)(b). The learned Judge in Chamber, however, dismissed his application on the ground that the petitioner was himself responsible for considerable portion of the delay.

2. We issued notice to the State arid Mr. Akhtar Shabbir, Assistant Advocate-General appeared in response thereto. We, convert this petition into an appeal and proceed to dispose it as such. 3. .The learned Assistant Advocate-General submitted that the case was entrusted to the Military Court for trial and remained pending there till 3-7-1982 and that even some of the P. Ws. had been examined, but the accused .persons made an . application for transfer of the case to the ordinary Criminal Court as a result of which the case was transferred back. He submitted that it were the accused who were responsible for the delay uptil 3-7-1982. Had they not moved an application for transfer of the case the Military Court might have finished the case soon thereafter. He urged further that the petitioners filed an application for bail before the learned Sessions Judge and the file of the case was summoned by that Court and remained with it till 27-9-1982. He urged that all this delay should be taken to have teen caused by the accused persons. He took us through the Order Sheet to show that the case had been fixed for recording' of evidence on 10 different dates and had to be adjourned because either one or the other accused absented himself or was not brought to the Court by the jail. authorities. The petitioner's counsel submitted that he is not in any way responsible for the above-mentioned delays.

4. We. have carefully considered the contentions of .the counsel for the petitioner. Irrrespective of the delay caused by the pendency of the case before Military Court and delay of the return of the file for the Court of Session, some part of the delay was certainly caused by the absence of the accused on some of the dates fixed for trial. As such we are of the view that the learned Judge in Chamber was justified in refusing bail to the petitioner. We, therefore, dismiss the appeal.

5. Before parting with the case; however, we would like to observe that we are disturbed to notice the number of adjournments given by the learned. Additional Sessions Judge in a murder trial. -Murder trials are required by' the High Court Rules and Orders to be completed with utmost expedition` (see Muhammad Rafique v. Muhammad Bafique (P L D 1983 S C 426). But the Court's hands are tied and it cannot proceed even if one of the accused is absent. If the learned trial Judge in this case feels that the accused are absenting themselves deliberately in order to delay the completion of the trial, he may consider cancelling their bail. If, on the other hand, the jail authorities fail to produce the accused on any of the dates of hearing the learned trial Judge, may consider taking action for contempt against them. Let a copy of this order be sent to the trial Judge at Gujranwala and his attention be drawn to our observations in paragraph No. 5 above. M. Z. M.? Petition dismissed.