' The petitioner is one of the four accused who are facing an inquiry for commission of an offence under section 302/34, P. P. C. In Chak No, 16/4pL, Police Station Shahboor in the District of Sahiwal for causing the death of one Khan. The petitioner is said to have fired the fatal shot from a .12 bore pistol. The three other copaccused of the petitioner are on bail. The motive for the commission of the offence, so far as the petitioner is concerned, is that Allah Yar, nephew of Billia, the first informant had abducted the sister of the petitioner about 9/10 years before the occurrence.
2. The petitioner was arrested on 29th September, 1973 and the challan was submitted in Court on 23rd March, 1974 i. e. After about 51 months of the occurrence. It came up for the first hearing before the Magistrate on 4th April, 1974. Statements of witnesses recorded by the police were handed over to the accused on 10th April, 1974. The case was then adjourned to 24th April, 1974. From this date till 4th July, 1974 no witness appeared. The Presiding Officer was away on 30th May, 1974 and 12th June, 1974. Evidence of three witnesses was recorded on 19th July, 1974. After that, till now the case has not made any progress. On none of the hearings, except which took place on 19th July, 1974, was any witness present. The file remained in the Sessions Court from 15th November, 1974 to 2nd December, 1974 in connection with an inquiry directed by the High Court. Copy of the order sheet sent by the Magistrate shows that on 22nd May, 1974, 20th June, 1974, 1st July, 1974, 31st August, 1974, 4th September, 1974, 17th September, 1974, 12th October, 1974, 8th November, 1974, 2nd December, 1974 and 16th December, 1974 the petitioner was not produced from jail. I, therefore, find that throughout these proceedings the prosecution was amiss in two ways. They did not produce witnesses in Court except on 19th July, 1974 and also failed to produce the petitioner from jail on ten hearings. The learned Magistrate has attributed the delay for his non-appearance in Court to the accused. In my view, this inference is entirely unjustified. The accused who is in jail cannot be held responsible for his nonappearance. He was in shackles and was to be brought to Court by an official agency.
3. The learned counsel for the petitioner addressed arguments even on merits. He contended that it was night time and identification was impossible. He further submitted that no empty was recovered and the observation of the learned Additional Sessions Judge that the pistol allegedly recovered from the petitioner is a corroborative piece of evidence was not sound. The learned counsel submitted that in the absence of any report by the ballistics expert, the recovery of pistol cannot be used as a piece of corroboration.
4. This case like many others reveals a deplorable state of affairs. The Magistrate mechanically adjourned the Case for non-appearance of witnesses and that of the petitioner. He did not even on one occasion invite the attention of the P. D. S. P. Or the S. P. To the non-appearance of witnesses.
Non-production of petitioner from jail on ten hearings is also a serious matter. There is no explanation whatsoever in the orders passed by the Magistrate for the persistent failure of the police to produce the petitioner in Court. The petitioner was arrested about 15 months ago and the inquiry has yet to go a long way. I, therefore, direct that he shall be released on bail on his furnishing security in the sum of Rs, 10,000 with one surety in the like amount to the satisfaction of the Inquiry Magistrate.
5. By my order dated 30th October, 1974 in Criminal Miscellaneous No, 206/B of 1974 I had asked the Sessions Judge to conduct an inquiry into the circumstances in which this case was being withheld. It has been found from the record that no report to that effect has been received. The learned Sessions Judge should be reminded about it and he be further asked to conduct an inquiry into the causes which led to the non-production of the petitioner in Court from jail on ten hearings.
It is hoped he will not hold up the file and shall conduct the inquiry on the basis of the jail record and the process issued by the Court.