P L D 1994 Lahore 133 (PLP)

The petitioner is facing trial under section 365, P.P.C. for having abducted one Zulifqar, an injured prosecution witness of a murder case. In the earlier round I had dismissed the bail plea of Shahid petitioner being Crl. Misc. No. 5070‑B/92 through an order dated 22‑12‑1992. Shahid petitioner appears to have petitioned the Supreme Court for his release on bail but the petition bearing Cr.P.S.LA. No. 15‑L/93 was dismissed by the Supreme Court on 7‑2‑93.

2. Bail is now being sought primarily on account of delay which has occurred in the conclusion of the trial. Challan in the present case had reached the learned trial Court on 3‑2‑1993 whereafter the trial was adjourned from time to time either on account of the absence of witnesses or on account of the non‑production of Shahid petitioner before the learned trial Court from jail. On three occasions, however, the witnesses were present but an adjournment was sought by the learned defence counsel.

3. Be that as it may, the allegation against the petitioner is that being a party‑man of the above‑mentioned murder case, the petitioner had abducted an injured witness of the said murder case; had detained him in their college hostel; had belaboured him during this confinement and all this had been done to coerce the said Zulfiqar P.W. not to depose against the accused persons of the said murder case. In my opinion, the case of the petitioner falls within the Fourth Proviso of section 497(1) of the Cr.P.C. as he appears to be a dangerous and a desperate criminal.

4. This being so, I do not find Shahid petitioner entitled to the concession of bail even on the ground of delay.

5. However, it is with regret, that I had noticed that the learned trial Court could not manage to record the statement of even a single prosecution witness for almost one year either on account of the non‑production of the witnesses or on account of the non‑production of the accused person from jail. This is a sad reflection on the part of the learned trial Magistrate who has failed to properly regulate the proceedings of his Court and to ensure compliance of processes issued by him. It has been repeatedly held that the learned Presiding Officers are not expected to sit as passive spectators leaving themselves at the mercy of the process servers or at the mercy of the witnesses and the parties before they. If the witnesses were not being produced before him, the learned trial Magistrate should have called in aid the further powers which were available to him to coerce the appearance of the witnesses before him. Likewise, ‑the non‑production of accused persons from jail, which is unfortunately becoming a routine rather than being an exception is a tendency which deserves to be discouraged with a fire‑arm. Non‑production of accused persons from jail is a clear disobedience of the orders/warrants issued by a Court of law which even otherwise renders the further detention of the under trial, in custody, as illegal. The learned Presiding Officers of Courts of law are directed to take appropriate action whenever an accused person is nor produced before them from jail under their directions. The Jailors and the local Police Chiefs are also. warned that in case of failure. on their part to produce an under‑trial prisoner before a Court of law, as directed, they shall render themselves liable to prosecution under the law.

6. I am informed that in the present case, the trial is now fixed for 11‑12‑

93. The learned trial Court is directed to proceed with the trial from day‑to‑day as from the said day and to conclude the same accordingly. The police officer present in Court has been directed to ensure the availability of the prosecution witnesses before the learned trial Court. 7: Copy of this order shall be sent to the learned trial Magistrate for his information and guidance.

8. This application is dismissed as abovementioned. N.H.Q./M‑1286/1, Bail refused.