A case against applicant, Akbar Ghulam alias Akbar and co-accused Miragh, under section 302/34, P. P. C. And 13-D of the Arms Ordinance, is pending in the Court of IIIrd Additional Sessions Judge, Sukkur.
2. The prosecution case briefly stated is that Badar Din and Sht!,ib are sons of Sher Muhammad.
They used to go in the morning from their village to attend their school and come back in evening.
Their father Sher Mohammad is employed in Small Business Corporation at Quetta. On 9th March, 1982 both the brothers went to attend the school and in the evening at about 7.00 p.m. Shoib returned weeping and crying. On enquiry he informed his uncle Abdul Hayee that at about 6.00 p.m. When they were coming from Bus Stand of Hingoro towards the village and when they reached near wheat crop of Allah Dad two persons, namely, Miragh son of Baksh Ali and Ak bar son of Bangui came out from the cultivation. He further told his uncle that Miragh had a hatchet and Akbar was armed with a gun. They challenged them and Akbar directly fired at Radar Din who fell down then Miragh gave him hatchet injury and after that Akbar also fired second shot at Badar Din.
It is further stated that Shoib raised cries on which Allah Dad came running and saw accused giving injuries to Badar Din. Accused then ran away. While they were running away declared that their elders got them disrespect from police therefore they have taken revenge. On hearing this news Abdul Hayee alongwith Shoib came at vardat. So many people of the village also came there.
They remained at the dead body for the whole night and on the next Abdul Hayee came to Panu Aqil where he informed his uncle Rasool Bux who also came at the vardat and saw the dead body, and then directed him to lodge report. He went to Police Post Sangi on 10th September, 1982 at 11.00 a.m. Where his report was taken and the same was sent to Police Station Panu Aqil for incorporation in 154, Cr. P. C. Book. Police after necessary investigation arrested accused and challaned. The case is now pending for trial.
3. Mr. Usuf Ahmed Jafri Advocate, appearing for the applicant has contended that applicant was arrested on 14th March, 1982 but the trial has not yet concluded, therefore, applicant's case is to be considered for grant of bail under section 497(1)(b), Cr. P. C. He has also argued that delay in the trial is not attributed to the applicant. He has not pressed the application on merits.
4. Mr. Abdul Qadir Halepoto learned Advocate, appearing for the complainant has submitted that in view of the recent amendment in section 497, Cr. P. C. The applicant is not entitled to have concession of bail because he is desperate and dangerous. He has argued that accused has committed murder of a young student therefore he is hardened criminal. He has contended that three prosecution witnesses have sworn their affidavits in the Court of IIIrd Additional Sessions Judge, Sukkur wherein they have stated that the applicant is a dangerous and desperate.
Mr. Mohammad Ibrahim Memon, Additional Advocate-General appearing for the State, has opposed the grant of bail and submitted that trial has commenced and doctor has been examined. He has further submitted that in view of a case reported in 1980 SCMR 203, the applicant is not entitled to concession of bail as trial has started. He has argued that applicant is dangerous and desperate.
6. The bail application of the applicant was dismissed by the IIIrd Additional Sessions Judge, Sukkur on 28th March, 1984 on the ground that it was pointed out to him by complainant side that accused are dangerous and desperate for which they filed affidavits but they have not yet been cross-examined. He, therefore, fixed the matter, on 22nd April, 1984, for recording the evidence of three persons for the purpose of bail who swore their affidavits. The applicant then filed bail application before the Circuit Bench at Sukkur of this Court and the learned Judge who was sitting there at that time observed as under :- "If applicants are keen to press this bail application and the Court is vacant they may apply to the learned District Judge for recording of the evidence on the question of bail by himself or before a link Judge so that the applicants may not be deprived of the benefits of the III proviso to section 497."
7. The applicant repeated bail application in the Court of Il1rd Additional Sessions Judge who rejected the bail application, vide his order dated 22nd May, 1984. The learned IIIrd Additional Sessions Judge while dismissing the application has made the following observations :- "On fresh basil application all the witnesses and complainant were cross-examined by the Advocate for accused. The complainant in his cross-examination has stated that accused Ghulam Akbar was dangerous and they were afraid to him prior to this incident. P. W. Rasool Bux has produced a few letters which have been received by him after filing of the affidavits.
Allah Dad has also stated, that accused Ghulam Akbar used to give threats on the dates of hearings.
In these circumstances I maintain my order, dated 28th March, 1984 and reject the bail application."
8. The applicant/accused Akbar was arrested on 15th March, 1982 and by now he has continuously remained in jail for 2 years and more than 3 months and only doctor has been examined. The trial of this case was started on 25th April, 1982 and it is regretted that till 31st March, 1983 for about 11 months the Additional Sessions Judge, Sukkur had not resumed the hearing of the case and on 19 hearings he adjourned the case. He framed charge on 21st March, 1983. From diaries it appears that Ilnd Additional Sessions Judge has adjourned the case for want of police papers, chemical reports etc. On 14th April, 1983 process returned served but witnesses did not appear and same position was on 21st August, 1984. This practice of granting adjourments by the Sessions Judge has been disapproved by the superior Courts and held that murder trials are required to be completed with utmost expedition and that in case Court feels that accused on bail were absconding themselves deliberately in order to delay completion of trial their bail may be cancelled. 1 refer a case of Mohammad Yakoob v. The State which provides guidelines for trial Courts.
9. In this case accused/applicant has not sought a single adjournment during last 2 years and 3 months, therefore, it has rightly been argued that petitioner is entitled to refer bail as a matter of right under section 497(0(b). The bail has been granted on this ground by the Courts for which reference could be made to the cases PLD 1983 Lah. 24 and 681, PLD 1982 Kar. 965, 1984 P Cr. L J 626 and 1983 SCMR 427.
10. Bail is being opposed on the ground in view of recent amendment in section 497, Cr. P. C. The relevant section including amendment reads as under :- "Section 497(1)(b) : who, being accused of an offence punishable with death, has been detained for such offence for a continuous period exceeding two years and whose trial for such offence has not concluded : Provided further that the provisions of third proviso shall not apply to a person previously convicted offender or to a person who in the opinion of the Court is hardened, desperate or dangerous criminal."
From complainant side affidavits of complainant Abdul Hayee, P. Ws. Rasool Bux and Allahdad have been filed. They have stated that accused are dangerous and desperate as they have killed a school-going boy and they are issuing threats from jail. These witnesses were cross-examined by a defence counsel. P.W. Rasool Bux has stated that prior to incident he was not dangerous but after this murder he became dangerous. He admits that Ghulam Akbar was Primary Teacher and had good moral character till the time of incident. Complainant has also admitted that accused Ghulam Akber was not convicted in any other offence and so Allahdad stated that accused was not a bad character prior to this incident. On this point no other independent evidence has been brought. The letters produced do not bear signatures of the accused. In my view on the basis of these affidavits the accused cannot be termed as dangerous or desperate and he cannot be deprived of the right given to him by law for the purpose of bail.
12. It is unfortunate that a boy has lost life but according to the principles of the Criminal Law the accused is to be considered innocent till he is found guilty. At this stage there is an accusation against the applicant and trial Court will decide the case on merits and evidence. Bail could be withheld on merits and circumstances as provided under section 497(1), Cr. P. C. In this case merits are not being considered.
13. The upshot of the above discussion is that applicants' case is fully covered under section 497(1)
(b) and he is entitled to bail on the sole ground of delay in the trial not on merits. He is admitted to bail on furnishing two sureties each in the sum of Rs, 50,000 and P. R. Bond in the like amount to the satisfaction of Sessions Judge, Sukkur.
14. As it appears that summons were served but the witnesses did not attend therefore it seems that they are not interested in proceeding with the case and Additional Sessions Judge deliberately delayed the proceedings. I, therefore, order that this case be withdrawn from the file of Additional Sessions Judge and be tried by the Sessions Judge, Sukkur. He should conclude the case within 3 months. In case accused protract the proceedings or on merits after recording the evidence the learned Sessions Judge is at liberty to cancel the bail. PLD 1984 SC 11 1