1971 P Cr (PLP)

Sh. Muhammad Akbar for the State. Ch. Hassan Muhammad for the Complainant. This is an application for bail under section 498, Cr. P. C.

2. On 13th of February 1969, a case under section 302, P. P. C. was registered against the petitioner for the murder of a girl namely, Mst. Safia. After the usual investigation the challan was put in the Court of the Committing Magistrate on the 9th of May 1969. The petitioner was admitted to bail by the Committing Magistrate on the ground that he was suffering from chronic colic., His bail was cancelled by the learned Additional Sessions Judge, Lahore at Sheikhupura. The petitioner questioned the propriety of the order of the learned Additional Sessions Judge, through Cr. Misc. No. 2575 of 1969. He was admitted to ad interim bail and a direction was made to the Medical Superintendent, Mayo Hospital, to constitute a Board to examine him. On receipt of the report of the Board that the petitioner was not a sick or infirm person, the interim bail was recalled. The present application has been moved on the ground of delay on the part of the prosecution to produce evidence in the case. The same was placed before my learned brother M. H. Munir, J. The learned Judge while admitting the petition passed the following order:‑ "Contends that though the occurrence took place on 13th February 1969 the case is still under inquiry before the learned Magistrate and not a single witness has been examined so far. Admit. Notice. Meanwhile, the petitioner shall be released on interim bail in the sum of Rs. 10,000.00 with one surety in the like amount to the satisfaction of the Assistant Commissioner, Nankana Sahib." The case, is now before me for the confirmation of bail.

3. I have heard the learned counsel for the petitioner, the State and the complainant at some length and have perused the various interim orders passed from time to time id this case. The case was registered on the 13th of February 1969, the challan was put in the Court on 9th of May 1969 and copies of the statements of the prosecution witnesses were supplied 'to the accused. The case was adjourned to 21st of May 1969, for recording the prosecution evidence. On 21st May 1969, the accused was present but the prosecution witnesses did not turn up. The Presiding Officer was also not present and the case was adjourned to 3rd of June 1969. On 3rd of June 1969, the process‑serving agency reported that the prosecution witnesses were intentionally avoiding service, whereupon the Presiding Officer issued bailable warrants for the appearance of the witnesses and fixed the case for 16th June 1969. On 16th June 1969, and 2nd of July 1969, the prosecution witnesses did not turn up and the case was adjourned to 16th of July 1969, on which date one of the prosecution witnesses Ghulam Muhammad was present and he was bound down for 2nd of August 1969. On 2nd August 1969, though Ghulam Muhammad was bound down, he did not turn up and bailable warrant was issued against him and the remaining evidence was summoned for 15th August 1969. On 15th August 1969, 3rd September 1969, 18th September 1969, 27th September 1969, 9th October 1969, and 17th October 1969,the witnesses did not turn. On 3rd November 1969, the Presiding Officer was on tour and the case was adjourned to 8th of November 1969 and thereafter to 19th November 1969. On 19th November 1969 fresh process was issued for summoning the witnesses for 4th of December 1969.

4. The history of the case reproduced above would show that though the case registered on the 13th of February 1969, till today not a single witness has been produced by the prosecution on all these dates the accused was present. The record is indicative of the fact that the complainant party is avoiding to appear in the Court. In Riasat Ali v. Ghulam Muhammad and another (PLD 1968 S,C 353), it was observed that inordinate delay in the prosecution of a case, if not, explained by the prosecution amounts to an abuse of the process of law, can be considered as a ground for bailing out an accused person, even in a murder case, depending on the nature of the, delay and the circumstances that have caused it. I am conscious of the fact that the allegations against the petitioner are that he was the assailant of Safia, but the delay that has occasioned in the inquiry entitles the petitioner to bail. In the circumstances, though with reluctance I confirm the bail of the petitioner, but direct that he should furnish fresh bail bond in the sum of Rs. fifty thousand with one surety in the like amount to the satisfaction of the Assistant Commissioner, Nankana Sahib.

5. The learned, Magistrate would be at liberty to cancel the bail of the petitioner .in case he is committed to the Court of Session. Bail confirmed.