1982 P Cr (PLP)

Ghulam Muhammad etc. v. The State P L J 1975 (Cr. C.) Lah. 435 and Muhammad Akbar and another v. The State 1975 P Cr. L J 920 ref. Islam Ali Qureshi for Petitioners. Khadim Nadim Malik for the State Date of hearing : 17th June, 1981. The petitioners who are facing trial under section 364, P. P. C. Were admitted to bail by the learned trial Magistrate on 8th April, 1981 on the ground that the prosecution had failed to produce prosecution witnesses despite several adjournments allowed to it for the purpose. The petitioners' bail was however, cancelled by the learned Sessions Judge, D. G. Khan on 12th May, 1981 as it was observed by him that the petitioners were not entitled to the concession of bail merely on account of non-production of evidence by the prosecution particularly when the offence with which they were charged fell within the prohibitory provisions of section 497, Cr. P. C. The petitioners have filed the present petition for bail in this Court after cancellation of their bail by the learned Sessions Judge.

2. I have heard the learned counsel for the petitioners as well as the learned counsel for the State. It is not disputed by the learned counsel for the State that the prosecution had failed to produce pro secution witnesses on 8th April, 1981 though a specific direction had been given by the learned trial Magistrate to the prosecution for production of its evidence on the previous date. Ordinarily mere non-production of evidence by the prosecution is no ground to release the accused on bail but where the prosecution fails to comply with the order of the trial Magistrate and takes no step for the production of its witnesses on the date fixed for recording of prosecution evidence, the trial Magistrate cannot be said to have acted illegally if he Limits the accused to bail especially in a case where the accused has been in the tee lock-up for considerable time without there being any progress in the trial. In Ghulam Muhammad etc. v. The State (P L J 1915 (Cr, C.) Lab. 435) accused were admitted to bail during commitment proceedings as the prosecution had failed to produce the prosecution witnesses before the inquiry Magistrate in spite of issuance of warrants. Similarly in Muhammad Akbar and another v. The State (1975 P Cr. L J 920) the accused was granted bail on account of lethargic attitude of prosecution towards production of witnesses before the inquiry Magistrate. In the present case, the petitioners were confined in the Judicial lock-up for six and a half months but the statement of not a single prosecution witness was recorded during the said period. The learned trial Magistrate was therefore, justified in admitting the petitioners to bail when on 8th April, 1981 he found that prosecution had failed to produce any witness even though specific order for production of prosecution witnesses had been passed by him on the previous date. The fact that the petitioners were facing trial for an offence which was covered by the prohibitory provisions of section 497, Cr. P. C. was not relevant in the context in which the petitioners were admitted to bail. In the two reported cases, the accused were released on bail on the ground of non-production of evidence by the prosecution although they were facing inquiry before the Magistrates in cases which fell within the prohibitory provisions of section 497, Cr. P. C.

3. For the foregoing reasons, I allow the petitioners' prayer for bail. They shall furnish security in the sum of Rs. 15,000 (Rs. Fifteen thousand) each with one surety each in the like amount- to the satisfaction of the Assistant Commissioner Jampur. Bail granted.