This is a petition for bail under section 498 of the Criminal Procedure Code, on behalf of Abdul Hamid, Abdul Aziz, Muhammad Siddique, Muhammad Bashir sons of Rehmat Ullah and Ghulam Rasool, in a case registered on 18th June 1969, at Police Station Nankana Sahib, District Sheikhupura, under sections 148, 302/149 and 307/325 of the Pakistan Penal Code, at present pending in the -Court of Mr. Waqar Ahmad, Magistrate Ist Class, Sheikhupura.
2. The facts of the case need not be repeated as they have been described in detail in Criminal Miscellaneous No. 5148/A of 1969, and Criminal. Miscellaneous No. 7177 of 1969. Criminal Miscellaneous No. 5148/A of 1969, was decided by my learned brother Muhammad Afzal Khan, J., wherein a prayer was made for the cancellation of bail, granted to Maula Bakhsh by the Additional Sessions Judge, Lahore at Sheikhupura. This applica--tion was dismissed by the learned Judge. In Criminal Miscella--neous No. 7177 of 1969, application of the present petitioners was dismissed by my order dated 3rd December 1969, with the following observations:- "Lastly, the learned counsel stated at the Bar that though the case was registered in the month of June 1969, no prosecution evidence has been recorded so far. The learned committing Magistrate is directed to complete the inquiry in this case within a period of three months without fail."
3. At fresh, application has been moved only on the ground of delay. The report of the learned Magistrate was sent for, as to who was responsible for the delay, in the inquiry. In his report dated 16th March 1970, he blamed the complainant for it. The relevant portion of his report reads :-- "The summons or Said, Mohabat, Shaukat, Said Amir, Rab. Nawaz, Abdul Ghafoor were served by affixing one copy of those on their residences; but they did not appear. The witnesses present were relieved anal the proceedings were Asgher Ali (the brother of Abdul Ghafoor P. W, and brother-in- law of Shaukat P. W.;) moved that he wanted to - move the High Court for the transfer of the case.
So the case was adjourned for 9th March 1970. On 9th March 1970 the said Asghar Ali did not appear nor any information was received that any transfer application was received that any transfer application had been moved. So the said Asghar Ali was given a notice as to why his bond of Rs. 200 be not forfeited to the State and the case was adjourned for 21 st March 1970 for evidence . . . . . . . . . . Sir, this show that the Court used the coercive methods and witnesses were served by the prosecution. But the intended transfer application caused the delay. It appears that the complainant party has been trying to delay the proceedings, somehow."
The report of the Magistrate goes to show that despite the service, the prosecution witnesses were not forthcoming and therefore, it was not possible, to conclude the inquiry within the the specified in the order of this Court. Relying on this report and the delay that had occasioned in the inquiry, it was urged by the learned counsel for the petitioners that the petitioners are entitled to bail on the score of delay in the inquiry or trial. In support of his contention, reliance was placed on Riasat Ali v.
Ghulam Muhammad and another (PLD 1968 SC 353) where their Lordships of the Supreme Court observed:- "Inordinate delay in the prosecution of a case if not explained by the prosecution amounting 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. The prosecution-is expected to proceed with its case with all despatch eliminating, every avoidable delay in order to bring it to a close and thus to determine the fate of an accused person which hangs in the balance as long as the proceedings do not terminate one way or the other."
The petitioners are in jail since June 1969, and the end of the inquiry is not in sight. Despite a direction of this Court to conclude the commit men proceedings within a period of three months, it was not possible for the Inquiry Magistrate to complete this inquiry on account of the dilatory tactics employed by the complainant party.
4. Viewing this case in this perspective and keeping in mind the delay attributable to the prosecution itself, despite the direction of this Court and without going into the merits of the case, I admit the petitioners to bail in the sum of Rs. 20,000 (rupees twenty thousand) each, with one surety each; in the like amount to the, satisfaction of the Committing Magistrate, pending the inquiry in the case against them.