1977 P Cr (PLP)

The applicant Rustam Khan and Zabit Khan are facing trial under sections 302/307/149, P. P. C. along with the six other co‑accused in the Court of Vlth Additional Sessions Judge, Karachi. Except for the applicants and one Habibur Rehman, all the other accused are on bail. A bail application being my learned brother Fakhruddin G. Ebrahim rejected Cr. Bail Application No. 690 of 1976 filed by these two applicants, J. by his order dated 8th July 1976. Similarly he also rejected another bail application being Cr. Bail Application No. 6c48 of 1976 filed by Habibur Rehman by an order dated 8th December 1976. Habibur Rehman filed an appeal against the said order in the Supreme Court of Pakistan. By judgment dared 4th February 1977 Hair Lordships were pleased to dismiss the said appeal. The bail plea on behalf of Habibur Rehman was canvassed on merits as well as delay in this Court as well as in Supreme Court of Pakistan. The allegations against the, applicants are that on 6th September 1974 at about 1‑30 p.m. in a Jeep b; ‑ring Registration No. KAK 7626 driven by Habibur Re ‑man, the applicants came in front of Kadri Hotel, Jackson Bazar, and Karachi belonging to Mir Hassan and fired at Abdul Hussain, Noor Hassan and Fazal Qayum who were standing outside the said Hotel Habibur Rehman is alleged to have fired at deceased boar Hass‑in hitting him on the eye which injury caused his death at the spot. The applicant Rustam Khan is alleged to have fired upon deceased Abdul Hussain on his head with a pistol. As regards the applicant Zabit Khan the allegation against him is that he fired upon Fazal Qayum, which hit him on his hip. Both the applicants were allegedly sitting on the front seat of the said Jeep. I have heard Mr. Azizullah K. Shaikh the learned counsel for the applicants and Mr. Abdul Hafeez Lakho the learned Additional Advocate General for the State. Since bail plea canvassed earlier on behalf of the applicants was rejected on merits, the learned counsel for the applicants pressed the present appli cation only on the ground of inordinate delay in the trial of the case. The teamed counsel firstly contended that in spite of order dated 1‑3‑1976 passed by his Lordship the Chief Justice directing the Judge dealing with this case to take special care to see that the trial commences at an early date and is completed without delay and subsequent directions given and observations made by their Lordships of the Supreme Court in their order dated 15th October, 1976 passed in a petition for Special Leave to Appeal No. K‑14 of 1976 and judgments dated 4th February 1977 passed in Criminal Appeals Nos. K 3 and 4 of 1977, the trial has not yet commenced. He therefore contended that the applicants were entitled to the grant of bail on this ground alone. The learned Additional Advocate‑General however pointed out that the delay in the trial of the case was caused on account of an act of the co‑accused Zia Abbas and Tariq Saeed who filed a revision application in this Court against the order of the trial Court refusing permission to withdraw the case against them and the proceedings in the trial Court were stayed by this Court. Thus one of the primary reasons for delay in the disposal of the case was the pendency of a revision petition in this Court regarding the withdrawal of the case against these two co‑accused. The perusal of the judgment dated 4th February, 1977 referred to here in above shows that tire appeal file' in the Supreme Court against the judgment regarding the withdrawal of the case against cc‑accused Zia Abbas and Tariq Saeed was also decided by their Lordships on the said date. As to the question of delay In the disposal of the case their Lordships were pleased to observe as under: - . . . . . . . .However, the revision petition has since been disposed of by the High Court and even the appeal filed in this Court against this judgment of the High Court has been decided today. There does not, therefore, appear to be stay reason why the trial should mot now proceed expeditiously. It will thus appear that their Lordships of the Supreme Court were not Inclined to accept the bail plea canvassed on behalf of co‑accused Habibur Rehman on the ground of delay until 4th February, 1977 when their Lordships were pleased to pass the judgment referred to hereinabove. This being the position 1 now proceeds to examine the reasons for delay in the trial of the case after 4th February 1977 on, which date the last order, appears to have been passed by their Lordships in this case. I have perused the certified copy of the case diary and I find that the case was fixed on 28th February 1977 when it vas adjourned to 21st March, 1977 for receipt of record and proceedings from the Supreme Court. It R & P along with copy of judgment v as however received from the Supreme Court on 1st March 1977. On 21st March 1917 the Jail authorities and summons against co‑accused Zia Abbas did not produce applicants and Habibur Rehman and Tariq Saeed also returned unnerved. It appears that these two co‑accused were not attending the trial Court as the case was then put off to 2nd April, 1977 when the applicants and Habibur Rehman were again not pro4uced by the Jail authorities Thereafter the case was put off to 144h April, 1977, 3rd May, 1977, 18 th May, 1977 and 31st May, 1977 taut on all these hearings the applicants and Habibur Rehman were not produced in Court from the Jail. On 15‑6‑1977 the applicants and all the remaining accused were however present in Court but as none of the P. Ws. was present, the case f was put of to 25th June 1977. The learned counsel has not produced a copy of diary indicating as to what happened on 25‑6‑1977 but the certified copy of the diary sheet of subsequent dates viz. 10th July, 1977 and 20th July, 1977 show that although all the accused including the applicants were present but the case could not proceed on ether of these two dates as for want of presiding Judge. The Court was Ding vacant. The case is now fixed on 6th August 1977. It is really unfortunate that the trial could not commence in this case in spite of directions referred to hereinabove. It appears that the trial could not commence for the first few months after February 1977 on account of abnormal conditions in the country after the general elections of March 1977. It is obvious that the police and other law enforcing agencies were busy in restoring lave and order in the country and the prisoners were not being produced in Courts for want of sufficient escort. The trial could not thereafter commence for want of presiding officer of the Court. Considering the reasons for the delay in the trial of the case I am of the opinion that the prosecution cannot be blamed for it, at this stage. The delay par se is not a sufficient ground for the granting of bail. In any case the delay in this case is not so inordinate or so scandalous or so shocking as to amount clearly to an abuse of process of law. In my view delay cannot be treated as sufficient ground for grant of bail to the applicants at this stage in view of the foregoing reasons I am in the circumstances of the present case, not inclined to grant bail to the applicants on the ground of delay. The result therefore is that this application is dismissed. Application dismissed.