P L D 1975 Lahore 530 (PLP)

Muhammad Ahmad Bani for A.-G. for the State. Malik Muhammad Akbar for the Complainant. Date of hearing : 1st October 1974. These two petitions for bail in a murder case are being pressed on ground of delay. The bail earlier granted to Mansabdar, Muhammad Yaqub and Ali Asghar accused by me was cancelled subsequently on the finding that they had misused the concession. In yet another order, wherein question of certain misrepresentation and/or mis-statements was examined, I affirmed the earlier order with regard to forfeiture of the right to remain on bail in so far as these three accused are concerned. It is doubtful whether such accused persons, who having once been granted bail lost the concession on account of misuse thereof, can again be released on bail on ground of delay. The main consideration in such cases is, as to whether an accused person should be allowed a discretionary relief when he has already misused such a con cession. In so far as the remaining two accused Mahboob and Sultan are concerned, they have been attributed direct role and on merits I had dis missed their application for bail in December, 1973.

2. However, in order to satisfy myself with regard to the causes of delay, the entire order-sheet has been perused. No doubt it is a long delay of about a year and a half and during this period out of eighteen only four witnesses have been examined. It is also true that on several occasions the witnesses did not appear and on some of the dates, despite service. But it cannot be denied that when warrants were issued, and it happened once, the witnesses did appear but on that occasion they could not be examined because the learned Presiding Officer did not find time to do so. I have observed in a number of cases that bail on ground of delay is not a technical matter. In each case, the question of delay has to be examined vis-a-vis the conduct of the parties as also the allegations made in the main case and is always subject to exercise of discretion. In this case, it cannot at al be given as a finding of fact that the accused have never been responsible to any delay throughout this period. At least on two occasions, the witnesses were present (at one, seven of them) when they could not be examined because the Court was informed that one of the accused was ill and on another, occasion that two accused could not be brought from jail. Whenever such a strange coincidence takes place, namely, that the witnesses are present ands either through a voluntary act or through a seemingly state act the accused fail to appear before the Court, it becomes a question for enquiry as to whether, in order to delay the proceeding further so as to gain the advantage through delay in bail, the accused had not manoeuvred the! adjournment in the case. Thus, it becomes the duty of the accused quay each such occasion to satisfy the Court that if it was an adjournment on account of illness, one that the illness was such that he on no account could have appeared before the Court and two, that if he could not at all appear. whether he could not be represented by his counsel under section 540-A.' Cr. P. C. so that the proceedings might continue and the witnesses who appear might be examined and further time may not be lost. Nothing has been done in this case in so far as the two instances of the absence of the accused and appearance of the witnesses noticed above are concerned. Such an explanation is necessary for another reason also for example, if seven wit nesses who were present on 18-5-1974 would have been examined, of course, but for the absence of one of the accused, may be that question of delay would not have arisen at all, because by then the total number of witnesses examined could have increased to eleven. Therefore, the presence of the witnesses even on one hearing makes a considerable difference in so far as the claim of the accused for the grant of bail on ground of delay is concerned. In this case, I am not satisfied that the entire delay in the conclusion of the proceedings is on account of any mala fide intentions on the side of the prosecution. If there are any mala fides in the case, they j are shared by the accused party as well. After carefully considering all the circumstances relatable to delay and hearing the learned counsel at some length I do not consider it a fit case for grant of bail on ground of delay.

3. When asked as to how long the complainant party would take to examine the witnesses, learned counsel for the complainant has stated that he has received instructions from his client that if there is no other hurdle the witnesses from the public, would be produced and examined within two months. Learned counsel has also made the offer that if required, the com plainant himself is now ready and willing to return to Pakistan from England so that he may be examined before the committing Magistrate. In so far as this last noted offer is concerned, it needs to be observed that on 18-5-1974 (it is mentioned in the order-sheet, it was represented) before the learned Magistrate that Muhammad Zaman complainant would be examined in the Sessions Court and that due notice in that behalf was given to the accus ed. This offer cannot be entertained in bail proceedings in the High Court because that might complicate the matter in so far as the enquiry is concerned. If so advised, the offer may be made before the learned Committing Magistrate who shall pass an order in accordance with law. This also disposes of the argument raised in the grounds of the bail petitions that the complainant has allegedly instructed his witnesses not to appear in Court till he returns from England. Had it been factually correct, the prosecution would not have stated before the Committing Magistrate as far back as May 1974, that they would examine him in the Sessions Court. 1, therefore, do not accept the verbal allegation made from the side of the accused in this behalf.

4. In the light of the above discussion, these two petitions (Cr. Misc. Nos. 2492 and Cr. Misc. 2769-B/74) are dismissed, with the directions that the complainant side should fulfil the undertaking with regard to the production of the witnesses within two months. The Committing Magistrate is also directed to take coercive measures (if the witnesses do not appear), so as to complete the enquiry within two months. If he fails to complete the enquiry during this period, he shall then report the causes of delay to the learned Sessions Judge through a fortnightly report till he concludes the enquiry. If the accused party finds anything in the report so submitted to the learned Sessions Judge which might be of any advantage to them, they may bring that circumstances to the notice of the learned Sessions Judge. S. A. H. Petition dismissed.