1981 P Cr (PLP)

Rafique Mahmood Khan, Addl. A.-G. for the State. Date of institution: 9th December, 1980. This application to this Court is filed by Manzoor Hussain, applicant under section 561-A, Cr. P. C. The applicant was a co-accused in a case of murder. The other accused were challaned in the District Criminal Court to stand their trial under section 5 of the Island Tazeerati Act read with sections 201, 302/34, Penal Code but the applicant escaped his trial for his becoming an approver in the said case so as to give his evidence from the prosecution side. To have had the position as approver he entered into an agreement with the District Magistrate and pardon was tendered to him under section 337 Cr.P.C. he as an approver gave this evidence in terms of the agreement under which he was granted pardon after a pardon was granted to him by the district magistrate he was kept in custody under section 337 (3) Cr.P.C. He was arrested by the police on 20th January 1978 and his associates accused of the aforesaid offences were also arrested by the police on 15th January 1978, 26thJanuary 1978 and 9th February 1978 respecitvely. It was on 15thJune, 1979 that the accused who were sent up for trial before the District Criminal Court were let off on bail by that Court in view of an amendment in the Criminal procedure Code relating to the matter of bail as they could not legally be detained beyond on period of two years from the date of their detention if the trial of the case could not be concluded within that period and the cause of delay of the proceedings is not attributable to a person accused of an offences seeking his release on bail in light of a previous added to section 497 Cr.P.C. by way if an amendment through an Ordinance the applicant also seeks his release on bail as the case could not be decided by the trial Court so far. The prosecution evidence was closed on 6th January 1980 and the statements of the accused were recorded under section 342 Cr.P.C on 22nd January 1980. The accused declined to produce any evidence in defence and so the case was adjourned to 12th 13th and 14thFebruary 1980 for arguments. The arguments took long to be concluded which were concluded of 10th April. 1980 end the case for announcement of the judgment was fixed for 5thMay, 1980. but no judgment could be delivered or 13thMay, 1980 as the District Qazi wets unable to peruse the file and so the case was adjourned to 13th May. 1980 for decision but no decision was also given on that day and the trial Court sat and waited to see whether the accused can be let off on bail in view of the amendment referred to above. The matter was then referred to the High Court as there was difference of opinion between the Sessions Judge and the District Qazi on the matter of bail. The reference was accordingly answered by the High Court and it was on 15th June, 1980 that the accused were bailed out accordingly and no judg ment could be written by the trial Court so far and the approver is still in custody while the accused are on bail. Again the arguments were started to be re-heard and the case was allowed to be adjourned on one pretext or the other as was being done during the course of previous arguments which were concluded on 10th April 1980 and the case wax allowed to be pro longed to 25th October, 1980 when the Public Prosecutor and the counsel for the complainant were to make a reply to the arguments advanced by the counsel for the accused. On 25th October, 1980 another Sessions Judge took over as District and Sessions Judge, Mirpur and the former Sessions Judge who had been hearing the arguments alongwith the District Qazi for a very very long time was found transferred to Rawalakote. The present Sessions Judge on a prayer made by the counsel for the parties adjourned the case to 25th November, 1980 for arguments and on 29th November, 1980 no arguments were heard and the case was postponed to 20th January, 1931 for arguments. No reason for adjourning the case to such longer dates was given by the trial Court. The accused have had the benefit of an amendment made in the Criminal Procedure Code relating to the matter of bail as a result of which the accused had to let go on bail and there had occasioned abuse of the process of the Court. From the above narration of the adjournment, having been made by the trial Court, it is obvious that the case was being prolonged in a manner unwarranted by any norm whatsoever. The trial Court failed to see that approver is being kept in the custody by the trial Court for a period of full three years till 20thJanuary, 1981 when the arguments are going to be heard and who knows it may take months together for the conclusion of the arguments, as was previously done though I will ask the trial Court to see that the reason prevails in hearing the arguments so as to evade the prolongation of the case un-necessarily. The evidence of the approver was recorded on 16thFebruary, 1978 and since then he has been in the Judicial Lock-up waiting for his release and the trial Court is found blind towards him. This is clearly abuse of the process of the Court on vie part of the trial Court and for that the learned members of the trial Court cannot earn any commendation in relation to their acts or omissions which have become cause to hold that there is a gross abuse of the process of the Court. The learned Additional Advocate-General is thus not in a position to say that there is no delay in the disposal of this case amounting to the height of injustice, so far the prolonging of the case is concerned by the trial Court and that is the abuse of the process of the Court. In the circumstances the approver cannot be allowed to suffer any longer. It has been authoritatively held by the majority of the learned Judges of various, High Courts that under section 337(3), Cr. P. C. there is no absolute bar for the High Court to grant relief of bail to an approver under sec tion 561-A, Cr. P. C. and I am respectively in agreement with them so as to invoke section 561-A, Cr. P. C. in allowing the applicant to be let off on bail so as to save him from further suffering to be caused by the abuse o' the process of the Court. That being so this application is accepted and the applicant is enlarged on furnishing bail in the sum of Rs. 5,000 with one surety in the i4.e amount to the satisfaction of Additional District Magistrate, Mirpur. Bail allowed.