In an occurrence, which took place on 10th August 1968, a case under section 302 read with section 149 of the Pakistan Penal Code was registered at Police Station Kharian, against the seven petitioners and one Rehmat son of Jowaya, who has already been admitted to bail.
2: In brief, the prosecution case is, that on the day of occurrence, at about peshiwela, Rehmat deceased was going out of the village and when he reached near the well of Fazal Dad Lambardar, the petitioners, who were armed with sticks, came out of the fields and overtaking aforesaid Rehmat, gave him stick blows. He died as a result of the injuries received by him in Kharian hospital.
3. The motive for the murder is stated to be, that one Fazal Dad instituted a complaint against one Qadir Dad. Rehmat son of Taj Din deceased was a witness for the complainant in that case.
Rehmat son of Jowaya, who is already on bail, approached him and requested him not to appear as a witness. This led to altercation between them. Rehmat son of Jowaya was given fist and kick blows by the deceased.
4. After their arrest, the petitioners and their co-accused Rehmat son of Jowaya, applied to the learned Sessions Judge for grant of bail. It appears, that Rehmat was admitted to bail apparently on the ground that he had raised a lalkara and had not otherwise assaulted the deceased.
However, the learned Sessions Judge, dismissed the petitioners' applications with a direction to the committing Magistrate to expedite the proceedings. After waiting for some the, the petitioners once again moved the learned Sessions Judge. By then, the statement, of eleven prosecution witnesses out of twenty-to cited by the prosecution had been recorded and, therefore, declining to grant bail to the petitioners, and the learned Sessions Judge, in his order dated 17th November 1969, remarked: "The committing Magistrate is again directed to expedite the proceedings as ordered earlier."
Dissatisfied with the order of the learned Sessions Judge, the petitioners, approached this Court by way of Criminal Misc. Petition No. 431 of 1970. This petition came up before me on 23rd January 1970.
Notice was issued to the State. When the case was taken up on 2nd March 1970, Mr. Abdus Salam, Advocate, appearing on behalf of the State, made a statement, that the 'text date of hearing was fixed for 4th March 1970, in the Court of the -Inquiry Magistrate. He expected that to all probability, the entire evidence would be recorded on that day. It is on this assurance and with a view to give further opportunity to the prosecution, that it was directed that: "the prosecution, shall conclude its ease within to months and if it fails, to do so, it shall be open to the petitioners to move this Court again."
With these observations, the petition was dismissed.
5. The expectation of the learned counsel for the State, the appearing, did not come true, and as a result another application bearing Criminal Misc. Petition : No. 8284 of 1970, was preferred by the petitioners in which it was utter alia alleged that although, to years and five months had passed, the prosecution had failed to complete the inquiry. However, when the matter came up before me on 14th December 1970, a direction was issued to the committing Magistrate to send his report within ten days indicating, as to how many prosecution witnesses, had already been examined and when was he likely to finish the recording of the evidence.
6. In response to a letter issued by the office, a reply was received on 9th January 1971, which revealed that statements of nineteen witnesses had been recorded till 5th January 1971: The statements of three witnesses, had yet to be recorded and they had been summoned for 16th January 1971. It was added, that the expectation was that the prosecution evidence would be concluded on that day, or in any case, "before the current month runs out". On the basis of this report, the petition was dismissed with the observation, that it shall be open to the petitioners to approach this Court, if the prosecution evidence did not finish by the end of the month. Hence the present petition. It was admitted to a full hear--ing by my learned brother Ataullah Sajjad, J. On 18th February 1971. His Lordship also asked the Magistrate to state reasons, why the orders of the High Court were not complied with. Reply was received in this Court on 24th February 1971. Its perusal reveals, that the statements of all the prosecution witnesses except one Malik Muhammad Rafique, an official of a civil Court, had been recorded. He was previously at Gujrat and had been trans--ferred to Gujranwala. He was to produce a file of a civil suit pending in the Court of Administrative Civil Judge, Gujrat. The Magistrate has remarked that: "In spite of hectic efforts this witness is not forthcoming."
However, according to him, he had given special direction to the prosecution to produce the witness on 6th March 1971.
7. On the receipt of the aforesaid report when the case was placed before me on 26th February 1971, I declined to pass the final order and adjourned it to 9th March 1971; with a view to afford yet another opportunity to the prosecution to examine that witness. It 'was candidly conceded before me by the learned counsel for the State, that the witness was not made available on 6th March 1971. It would, thus be clear, that the petitioners are rotting in jail for the last 2-- years without the commitment proceedings coming to an end.
8. In the case of Riasat Ali v. Ghulam Muhammad and-- another (PLD 1969 S. C 353) my Lord Mr. Justice Sajjad Ahmad while dealing with the delay m the disposal of criminal matters, observed:- "Inordinate delay in the prosecution of a case if got 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 pending 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 prosecution cannot be permitted to enlist the will of the Court on its side directly or indirectly in prolonging the worries and harassm ent of an accused person which are inevitably caused by his protracted detention without trial. Leisurely steps taken in filing the challan, tardy and halting production of evidence or seeking of unnecessary adjournments, except those necessitated by force of circumstances must be strongly deprecated. But delay in the prosecution of a case or the procrastination of the proceeding in a. Trial furnishing as a ground for bail have to be weighed arid judged in each case on its own merits."
Applying the aforesaid weighty dictum, to the case before me I find, that Malik Muhammad Rafique, who is an official of the Court, could be easily made available for production in the last 2-- years.
All that he had to do was to produce the file of a case. It is said that he has been transferred to the Court of Sessions Judge, Gujranwala. Even if that be correct, very little the was necessary to get him served and examined in all the the that ha elapsed. It seems to me that the prosecution is not very much interested in the disposal of this case and is without rhyme and reason, prolonging the proceedings.
8. In the aforesaid view of the matter, I feel, that the petitioners are entitled to the grant of bail. They shall be so released, provided they execute bail bonds in the sum of Rs. 15,000 (rupees fifteen thousand) each, with one surety each, in the like amount to the satisfaction of, the committing Magistrate.