P L D 1979 Lahore 511 (PLP)

Muhammad Yusuf, co-accused of the petitioner, was granted bail by an order of this Court dated 8-11-1978, on the ground of inordinate delay due to abscondence of two accused, one of them having secured release on a forged bail bond. The case was registered on 15th October, 1976 at Police Station Yakki Gate, Lahore and it was sent to the Court of Session on 5th November 1977. Eversince then more than 22 adjournments' have taken place and the trial could not commence since proceedings under sections 87, 88 and 512, Cr. P. C. have not been completed by the Court. The case has been moving from one Court to the other. One of the accused Amir-ud-Din, whose bail was cancelled, had not appeared before the learned Additional Sessions Judge although his presence was marked in the order sheet. This information was laid by the counsel for the complainant in the earlier bail application Cr. Misc. No. 4097-R/1978. The petitioner is said to have been armed with a '12 bore carbine and the allegation against him, as mentioned in paragraph 10 of the petition, is that rest of the accused also fired, as a result of which three persons received simple injuries.

2. I had sent for the Advocate-General to find out as to whether the trial Judge has complied with the provisions of sections 87 and

88. The learned Advocate-General submits that after the order passed by this Court in the earlier petition on 8-11-1978 the necessary formalities have been complied with for the commencement of the trial which is to take place on the 20th February, 1979.

3. The main question for consideration in this petition is as to what is the stage at which the necessary formalities have to be complied with for proceedings in a case of murder where the arrest of the absconders arc not in the sight. In the instant case, as I have observed, almost a year and a half has lapsed but no action has been taken by any one of the trial Judges who were entrusted with the case from time to time. This is serious lapse on the part of the Court which has resulted in the detention of the petitioner without trial for no fault of his. The learned Advocate-General cited Daya Ram v. Emperor A I R 1926 Lah. 83 and Bacha Said v. The State P L D 1978 S C

102. In the former case a Division Bench of this Court made the following observations while interpreting section 512: "Section 512 requires only that before the Court records the depositions of the witnesses for the prosecution under this section, it should be proved that the accused person has absconded and that there is no immediate prospect of arresting him, but it does not require that a finding should be given to that effect." Although this was a case of prosecution witness, but the observation `finding' that the accused person has absconded is not necessary, is worth consideration.

4. A plain reading of sections 87 and 88 clearly shows that it is the satisfaction of the Court after taking evidence where it is found that a person against whom warrant has been issued has absconded or has concealed himself and the warrant cannot be executed the Court can publish a written proclamation requiring him to appear at a specific place and at a specified time not less than 30 days from the data of publishing such proclamation, thereafter the procedure of proclamation is mentioned in this section. Section 88 gives power to a Court to order attachment of the property movable or immovable belonging to a proclaimed person after issuing the proclamation mentioned in section

87. Section 512 comes into operation and the trial has to proceed in the absence of the proclaimed offender.

5. Chapter 15-A and B, Volume Ill of the High Court Rules and Orders provide the mechanism of the proceedings under sections 87 and 88 and the recording of evidence in the absence of the accused. The learned Advocate General submitted that this lapse should be dealt with on the executive side but he is unable to support the inactivity and careleseness of the various Presiding Officers of the trial Court who have not applied their mind either on account of the ignorance of law or slackness. Re that as it may, this conduct is highly deprecated. The trial should not have been delayed for such a long time.

6. It should be clearly understood that the trial Court should take prompt action where it comes to its knowledge that the attendance of the accused persons cannot be procured against whom warrants of arrest have been issued and they are not being executed or there is no likelihood of the appearance of the accused, the objective being delay in the trial. It does not, however, mean that the Court should also hastily act without observing the proper procedure prescribed by law."

7. The petitioner's case is no worse than that of his co-accused who has been granted bail. He shall be released on bail provided he furnishes a security in the sum of Rs. 50,000 (rupees fifty thousand) with two sureties in the like amount to the satisfaction of the Assistant Commissioner, Lahore. S. Q. Bail allowed.