1. ' MUZAFFAR ALI, J.--- The petitioners were charged under sections 302/364/34, P.P.C. Vide F.I.R. No,10 of 2002 Police Station Tangir where in it is stated that the petitioners along with two other accused, who are reported to be absconders, have murdered one Mst. Natoki.
2. ' The occurrence took place on 4-4-2002 and the F.I.R. Was lodged promptly. The petitioners/accused were also allegedly absconders and were arrested on 19-9-2002. The petitioners/accused are facing trial in the Court of learned Additional Sessions Judge, Diamer, they were charged by the Court on 24-2-2003 and the petitioners are in judicial lock-up since their arrest. The petitioners/accused moved a bail application before the trial Court, but was refused on 29-4-2005, hence this petition.
3. ' The learned counsel pressed the only point, that the prosecution/ complainant party deliberately are delaying in conclusion of trial and referred the order-sheets of the Court and argued that, the accused have been arrested on 19-9-2002 and the challan of the case was put into Court on 19-10- 2002 and the charge for the above offences against the petitioner/accused was framed by the trial Court on 24-2-2003.
4. ' The prosecution witnesses were summoned for 20-3-2003 by the Court, but the witnesses who are close relatives of the complainant party were not attending the Court and the trial Court issued bailable warrants against them on 30-4-2003 and 24-5-2003 was fixed for prosecution evidence and after the above fixed date a series of dates were fixed by the Court for production of the prosecution witnesses, but all in vain and lastly on 23-10-2003 the trial Court was compelled to issue, non-bailable warrants against the prosecution witnesses and 12-11-2002 was fixed for evidence, but on the same appointed date neither the witnesses were brought before the Court in compliance of non-bailable warrants nor the D.A. Attended the Court and case was adjourned for 3-12-2003 and on 3-12-2003, the prosecution witnesses were not in attendance before the Court and the Court again issued non-bailable warrants against the prosecution witnesses, but the witnesses remain absent on the dates 18-12-2003 and 26-3-2003 respectively, and lastly only 3 prosecution witnesses have been adduced on 7-4-2004 and 12-5-2004, was fixed for remaining witnesses and witnesses did not attend the Court and on 22-8-2004, the trial Court again issued non-bailable warrants against the prosecution witnesses and as such up till now the process of law failed to assure the attendance of the prosecution witnesses before the Court, therefore, the petitioners are entitled to be released on bail. The learned counsel relied on PLD 2005 (sic) page No,202.
5. ' The learned Advocate-General, for State although admitted the above situation in the case, but opposed the version of the learned counsel that, the above circumstances have entitled the petitioners for grant of bail and raised following points in support of refusal of the bail:---
(a) Since provisos (3) and (4) to section 497, Cr.P.C. Have now been omitted, as such the petitioners cannot claim concession of bail on ground of delay in conclusion of trial.
(b) That, the petitioners have remained absconders, therefore, they are not entitle to be released on bail.
(c) That, the delay in conclusion of the trial is not only on the part of prosecution but the petitioners are also responsible for it.
6. ' Hence the petitioners cannot invoke the discretionary powers of the Court for grant of bail.
7. ' I have given thorough consideration to the arguments of the learned counsel for the petitioners and the learned Advocate-General for the State and also perused the record of the case and I am afraid, How the police agency and the prosecution including the complainant party have abused the process of law in this case, the learned Court has issued bailable warrants against the prosecution for the first time and after that, the Court has issued non-bailable warrants against the prosecution witness thrice, but the police agency failed to comply the orders without justification and it is shocking too, that the trial Court remained silent and has not taken any serious action against the responsible persons of police .Agency and left the case to be linger on by granting of adjournments in the case. These are the leniencies by the Courts in our area which have shaken the trust of public over the judicial system and these are the lenient views, which have allowed the police to do whatever they like, if the Courts of law are vigilant of their powers as trustees of law, no one can dare to abuse the process of law. Hence the subordinate Courts are strictly directed to take serious action against the police agency, if the police do not comply with the orders of the Courts.
8. ' Now I am discussing the first point raised by the learned Advocate-General, indeed, the provisos
(3) and (4) to section 497, Cr.P.C. Have been omitted, but the prosecution and the complainant party cannot be allowed to misuse this situation of law in their favor, and the petitioners cannot be allowed to remain in jail for an indefinite period without concluding trial. At this stage I am going to reproduce the observations made by my learned brother Judge of Karachi High Court as reported in PLD 2005 Kar. Page 202 as under:--
(b) Criminal Procedure Code (V of 1898)--- ' ----S. 497---Penal Code (XLV of 1860), Ss.302/324/459/34--- Bail, grant of---Complainant and the prosecution witnesses who were related inter se and two of the witnesses were real brothers of the complainant, had failed to appear in Court despite issuance and service of bailable warrants against them and this fact spoke for itself---Even before introducing provisos (3) & (4) to S.497, Cr.P.C. Which now stood omitted, bail was being granted in cases of delay in conclusion of the trial which appeared to be shocking and scandalous and even on the basis of hardship in appropriate cases---Accused was admitted to bail in circumstances.
9. ' The next point raised by the learned Advocate-General is also having no force, alleged absconsion of the petitioners cannot be a pretext to delay the trial, third point of the learned Advocate-General is also of no avail, the prosecution witnesses have failed to appear in Court despite issuance of non-bailable warrants against them, so delay in conclusion, of trial is because of this fact.
10. ' As a result of the above discussion I am of the view, that, the prosecution and the complainant party both have misused the situation as such this is an appropriate case to exercise discretion in favor of granting bail and as such petitioners are released on bail, if they furnish security of two lacs each and two sureties each in the like amount to the satisfaction of the trial Court and the trial Court is directed to ensure the conclusion of the trial within appropriate time.