1. The applicants along with co-accused Khan Punjabi are charged for offences under section 302, P.
2. P. C. For murder of one Allah Dino on 25-11-1970, by using fire-arms. Co-accused Khan Punjabi and Ramzan were granted bail by the Court below but the applicant's bail application was rejected by the Enquiry Magistrate as well as the learned Sessions Judge, Hyderabad on 23-8-1972 on the ground that there were eye-witnesses of the incident and other circumstantial evidence that there was a prima facie case against the applicant for the alleged offences. The plea of the applicant with regard to delay was rejected by the learned Sessions Judge on the ground that it was not occasioned by the prosecution.
3. The applicant thereafter moved a bail application before this Court on two grounds that the dead body was found tense and bent by Police and that the police did not find any empties or cartridges near the dead body but at a distance of 100 paces and that the co-accused Khan Punjabi was released on bail, secondly that there was inordinate and deliberate delay on the part of the prosecution to produce the witnesses and it was then submitted that it was the policy of the Legislature that all accused be granted bail as a right including those involved in murder cases, where the committal order has not been passed within one year by the Enquiry Magistrate and the proposed amendment was to come into force from 1st January 1973. At that Mr. Usman Ghani Rashid, Assistant Advocate---General submitted that within two months' time the proposed amendment would come into effect and that the applicant would be entitled as a right for grant of bail and it was not the proper stage for consideration of the question of delay. I accepted the plea of the counsel for the State anti rejected the bail application observing that "no doubt two years have passed since the incident and the matter is yet at the enquiry stage and the delay is deplorable and the applicant may repeat his bail application after coming into force the proposed amendment of law in question in January 1973".
4. This second bail application under section 498, Cr. P. C. By the applicant is based mainly on the grounds that their previous bail applica--petition was dismissed in view of expected coming into effect of the proposed amendment of the Criminal Procedure Code, 1973. As that amendment has not come into force and it was left with the applicant to approach this Court again and that the inordinate delay in the proceeding will show that committing proceeding will take years and that in spite of the clear disapproval of this Court related to delay in the previous order in com--mittal proceedings the case has not made any progress due to no fault on the part of the applicants and lastly that the case against the applicant rests entirely on the uncorroborated ocular testimony of interested wit--nesses which evidence is not likely to be relied upon for convicting as many as four persons on a capital charge.
5. When this matter came first for hearing on 24-4-1973, counsel for the applicant made grievances with regard to the deliberate delay on the part of the prosecution in proceeding of this case and the absence of committal order by the Enquiry Magistrate in spite of 2J years since the incident.
6. Referring to the case diary, copy of which was filed I adjourn--ed the case, and directed Mr. Jamaluddin H. Ahmed learned Additional Advocate-General to make enquiry from the jail authorities as to why they are not producing the accused persons as well as from the police as to why they are not producing the prosecution witnesses which has caused delay in committal order.
7. Today when the matter came for hearing Mr. A. H. Memon learned Advocate-General appearing for the State submitted that on his enquiry from the police with regard to non-produc--petition of the prosecution witnesses he has received tele-printer message from the Superintendent of Police, Hyderabad No. PB/Gen./3459-3439-40 Exh. 1, HYD. Dated 7-5-1973 stating that S. H. O. Saeedabad Police Station has received process in the names of P. W. Goloo Khan and Chotto Khan on 9-9-72 from the Court of S. D. M., Tando Bago for service which were returned unserved as the period of service was too short and since then the S.H.O. Did not receive any process for service from any Court including the Court of 1st Extra Joint Civil Judge, Hyderabad. With regard to the non- production of the applicants in Court by the jail authority, learned Advocate-General referred to the intimation from Director of Prisons, Sind, Hyderabad dated 2-5-1973, Message No. NG 633 of 1973 Exh. 2 which is as under: --- "In enclosing a copy of Teleprinter Message No. NG 633 of 1973 dated 26/27-4-1973 from the Additional Advocate-General, Sind sent to this Directorate on the subject noted above, I am to request you to please intimate reference numbers of letters issued to this Directo--rate from your Honourable Court on 3-2-1973 and 16-2-73 in connection with the production of prisoners cited as subject (and mentioned in Teleprinter Message) in order to see why the same were not attended to by this Directorate as complained in the enclosed Teleprinter Message. The number and dates of your letters issued to the Superintendent Jail concerned may be enquired accordingly. Moreover the name of jail from where if the prisoners in question have ever been produced in your Court, may also be reported. It will be very kind of you if the required information is supplied by return of post so that necessary report may be obtained from the concerned Superintendent Jail and submitted to the learned Additional Advocate-General, Sind in time, as directed by him.
8. (Sd.)
9. Director of Prisons, Sind, Hyderabad.
10. The learned Advocate-General submitted that entries in case diary from 11-i2-1970 to 28-3-1973 of the learned Enquiry Magistrate are contra--dictory to the report of the Superintendent of Police, Hyderabad as well as to that of the Director of the Prisoners (Hyderabad), and lie conceded that there is definitely inordinate delay in production of the witnesses on the part of the police as well as production of prisoners by the jail authority if the case diary of the Enquiry Magistrate is to be believed, therefore, in the circumstances he will not oppose the bail to the applicant because it is more than 21 years the committal order has not been passed.
11. The perusal of the case diary goes to show that there is sufficient force in the contention of the applicant, because for no fault of the applicant the trial is being delayed by the prosecution authorities as conceded by the Advocate-General. From case diary I do not find any service issued in the name of P. W. Chotto Khan and Goloo Khan from 9-9-1972 as alleged by the Superintendent of Police, Hyderabad in his message, on the other hand the case diary shows that on 14-9-1972 the accused were not produced by jail authorities. P. Ws. Present. Summons to the other P. Ws. And issue production warrant of accused. On the next date of hearing i.e. 28-9-1972 it is stated in the case diary that accused Ramzan present on bail other accused not produced by jail authorities. P.
12. W. Goloo present. Issue production warrant of accused.
13. 16-10-1972. Accused Ramzan present on bail. Accused Samon present in custody. Other co- accused not produced by jail authorities. P. W. 5 Goloo not present. Process not returned. Repeat process. Issue production warrant of accused Bakhar and Sawan and issue bail warrant against P.
14. W. Goloo.
15. 31-10-1972. Accused Ramzan present on bail. Other co-accused not produced by jail authorities. P.
16. W. Goloo absent. Process not returned. Production warrant should be issued of other co-accused.
17. It may be noted that applicant's bail application was rejected by me on 7-11-1972 and thereafter not a single witness has been produced by the prosecution and the case was delayed on one or the other pretext and the case diary if believed it goes to show that on 13-11-1972. Accused Ramzan present on bail. Other co-accused not produced by jail authorities. A.
18. P. P. Present. P. W. Goloo absent. Process not returned. Issue production warrant of other co--- accused.
19. 15-11-1972. Accused Ramzan present and submitted application that on the date of hearing his father has expired therefore he was absent. Absent excused. Process may not be issued against accused Ramzan.
20. 28-11-1972. Accused Ramzan present. Other accused not produced by jail authorities. No P. W.
21. Present. Process not returned. Issue production warrant for accused in custody.
22. 23-12-1972. Accused Ramzan present on bail. Other accused not produced by jail authorities. A. P. P.
23. Present. No P. W. Present. Interim remand of accused who are in jail to be obtained. Issue production warrant of accused with a direction that they may be produced on the date of hearing.
24. 6-1-1973. Accused persons not produced by jail authorities. Issue pro--duction warrant.
25. 22-1-1973. Accused Ramzan (a Khan Muhammad present on previous bail and request for time.
26. Time allowed. He is directed to furnish fresh surety. Other accused who are in custody not produced by jail Authorities. Issue production warrant.
27. 3-2-1973. Accused Samoo present in custody. Accused Bakhar and Sawan not produced by jail authorities. Accused Ramzan called absent. Issue non-bailable warrant against Ramzan and notice to this surety. Issue letter to Director of Prisons for arranging production of under-- control prisoners Bakhar and Sawan. Issue summons to P. Ws. Accused remanded to custody.
28. 16-2-1973. Accused Samoo present in custody. Other two accused Bakhar and Sawan not produced by jail authorities. Repeat production warrant and send through Director-Prisons, Hyderabad. Accused Ramzan called absent. Summon to P. Ws.
29. 1-3-1973. Accused Ramzan present. Other accused are not produced by jail authorities. No P. Ws.
30. Present. Issue summon to witnesses and P. O. For accused.
31. 14-3-1973. Accused Ramzan present on bail.- Other accused not produced by jail authorities. Issue P. O. For them and summon to remaining P. Ws.
32. 28-3-1973. Accused Ramzan present on bail. No other accused produced by jail authorities. No P. W.
33. Present. Repeat P. O. For accused and summon to remaining P. Ws.
34. A cursory reading of the case diary and the intimation of the Superin--tendent of Police, Hyderabad, as well as the letter of the Director of Prisons goes to show that their contents are contradictory to each other because the case diary shows issuance of summons and repeated direction to the jail authorities to produce the accused persons and to the police to produce prosecution witnesses while the scanty information submitted by the police as well as the jail authorities goes to show that they received summons only a couple of times and the jail authorities are unaware that if any production warrant was issued and in fact the Director of Prisons also wanted the references the dates when such directions were issued. I am constrained to observe that the way in which the case was handled riot only by the police but also by the Enquiry Magistrate as well as the jail authorities which resulted in inordinate delay in concluding the enquiry proceedings which cannot be appreciated and must be deplored and the present accused under the law must be tried for the alleged offences expeditiously. The procedure adopted in this case is clear violation of the fundamental principles of the Criminal Procedure Code and Jurisprudence. The accused has a right to ask the Courts to try him expeditiously for alleged offences. From 11-12-1970 up to 28-3-1973, this matter came before the Enquiry Magistrate for hearing about 77 times and invariably, if at all, I am to believe the case diary of the Enquiry Magistrate, either the A. P. P. Was absent or the prosecution witnesses remained absent or the final challan was not produced, or the accused was not produced by the jail authorities. I am constrained to doubt the veracity of entries in the case diary of the Enquiry Magistrate as I doubt the intimation given by the Police and the Jail Authorities as conceded by Advocate-General, because on 7-1-1971 it is recorded in the case diary by Mukhtiar kar and F. C. M., Hala that final challan received today. Issue letter to A. P. P., but on the next date of hearing i.e. 20-1-1971 it is recorded in the diary that final challan was not submitted by the police. Issue letter to S. H. O. To submit final challan forthwith. Subsequently again it is recorded that final challan has not been received. It is a sorry state of affairs, that during a period of 2J years the case came up for hearing 77 times but the Enquiry Magistrate and the prosecution agency was able to examine only 8 witnesses. One would never know as to how many more years will be spent for conclusion of the enquiry proceeding if the present speed is kept up by the agencies concerned. I am a N are that mere delay by itself is no ground for grant of bail to accused persons particularly when the are involved in murder case, but in exceptional cases, in my opinion as in the present one, where the delay is deliberate, unexplained and by all three agencies of Government machinery, amounting to abuse of the process of law, delay can be considered as a ground for bail, and this Court will not allow perpetuation of abuse of process of law and must come to the rescue of citizens on a proper occasion. I clearly deplored the delay in proceedings of this case on the part of the prosecution and hoped that all the three agencies i.e. The Enquiry Magistrate, Police and Jail authorities' will take note of it, and the committal proceeding would be expedited but nothing have happened so far, consequently all the three agencies continued as usual their leisurely attitude, as a result not a single witness has been examined from 7-11-1972 to this date as per case diary.
35. I therefore for the above reasons hold that this is a fit case where the applicants must be granted bail. I accept this bail application and direct that the applicants be released on bail on furnishing surety and P. R. Bond in the like amount in the sum of Rs. 25,000 each to the satisfaction of the trial Magistrate. 1, however, leave it open to the learned Sessions Judge and not to the enquiry Magistrate to cancel the bail of the applicant, after the committal order has been passed, and after recording some evidence, if he comes to the conclusion that there are sufficient grounds to do so. A copy of this judgment may be sent to the Home Secretary, Government of Bind.
36. K. B. A.