Criminal Miscellaneous No. 864/13 of 1973 (for cancellation of bail granted by learned Sessions Judge, ride his order dated 24-2-73 and Criminal Miscellaneous No. 411/B of 1973 (for grant of bail earlier refused by the learned Additional Sessions Judge vide iris order dated 14-9-72) arise out of the same murder case. Therefore, they are being disposed of together.
2. The accused were arrested on 2-6-68. Their case was referred to he tried by a tribunal under the West Pakistan Criminal Law Amendment Act, 1961, but eventually it seas withdrawn therefrom and was sent to an ordinary Court, as stated by the learned counsel for the petitioners some--where in the middle of 1971 to be dealt with under the Criminal Procedure Code. A Magistrate First Class started commitment proceedings. Till 26-8-72 when the last witness was examined, eleven out of twenty-three witnesses had been examined. During the pendency of the proceedings before the committing Magistrate as explained above, the petitioners moved this Court for bail in Criminal Miscellaneous No. 1851/B of 1971 which was dismissed by me on 23-7-71. I dismissed the petition on the consideration of the merits of the case as well as the ground relating to delay. I then held that the delay per se was no ground for bail in a murder case as it did not amount to abuse of process of Court. The petitioners again moved the learned Additional Sessions Judge who dismissed the petition on 14-9-72. It is stated at the bar that the Sessions Judge visited the Jail together with the District Magistrate and after having learnt that some of the inmates of the Jail were undergoing some hardship, they advised them to make applications for bail. Mansab Khan one of the petitioners in Criminal Miscellaneous No. 411/B-73), it is stated, "in order to see whether bail could be allowed in such a case", made an application to the learned Sessions Judge who, vide his order dated 24-2-73, allowed the same. The order reads as follows:-- "The petitioner has applied for bail through Jail. He along with 3 others is charged with the murder of Amir Khan which took place on the night between 15/16-5-68. The petitioner is not named in the F. I. R. The case was firstly referred to the Tribunal but on the repeal of the Criminal Law Amendment Act it was transferred to ordinary Courts. Out of 23 P. Ws. Only 11 have been examined so far. The last witness was examined on 26-8-72. The petitioner was arrested as back as 3-10-68. As the commitment proceedings have not been finalised within a reasonable period, I admit the petitioner to bail in the sum of Rs. 10,000 with two sureties in like amount to the satisfaction of the C.
M.
(2) The C. M. Shall be at liberty it) cancel tile bail if after recording the prosecution evidence he comes to a finding that a prima facie case has been made out against the petitioner. The result of the application be intimated to the petitioner through Jail authorities."
3. There is no question of reconsideration of the merits of the ease. Learned counsel for the petitioners has, therefore, argued the question of ball on the ground of delay. It is true that in the earlier order I held that delay per se, if it does not amount to abuse of process of Court, was not sufficient ground for bail in a murder case. In a subsequent matter, however, relying on several Supreme Court pronouncements on the question of delay and keeping in view the provisions of the Law Reference, in Criminal Miscellaneous No. 1433/13 of 1972, decided on 8-7-72, 1 hold that if the accused are not responsible for the delay, even in such like cases if the delay is of one year the Court has discretion to allow the bail. In one --of the cases which was dealt in my judgment in the above-noted matter, special leave to appeal before the Supreme Court against the order passed by this Court has been granted. However, the Supreme Court in another case Muhammad Din etc. v. State (Cr. A. No. 70 of 1972) allowed bail on ground of delay of about one year when the accused were not responsible for the same. I again considered-the question of bail on the ground of delay in Criminal Miscellaneous No. 3038/13 of 1972, decided on 16-3-72 wherein 1 have mainly relied on the judgment of their Lordships of tile Supreme Court in Muhammad Din's case which is reproduced below:-- "The learned counsel for the parties state that this case may be treated as an appeal and disposed of as such. The appellants were challaned under section 302/148/149, P. P. G. On the 24th August 1971. They are in Jail since then. It appears that the case is dragging on and the commitment proceedings have not been completed as yet. It was pointed out that the learned Magistrate has been transferred arid the case was to be put up for orders on the 10th July 1972. It is thus apparent that for no fault of the appellants they have been detained in Jail for about a year. On the 3rd duly 1972, this Court directed that commitment proceedings should be completed within one month.
The learned Assistant Advocate-General bas placed the report of the committing Magistrate. This report shows brat the direction of the Court has riot been carried cut and the case is still hanging ran. In these circumstances, we consider that the prosecution is riot interested in the speedy disposal of the commitment proceedings and the case is dragging on. It is evident that there it Inordinate delay in the conduct of the proceedings. In these circumstances, we direct that the appellants be released on bail to the satisfaction of the com--mitting Magistrate. In case they are committed, it will be open to the committing Magistrate to cancel their bail:
4. In my view the observations in the case of Muhammad Din fully apply to this case. The petitioners are in custody for the last about five years. The delay in conclusion of the commitment proceedings is not at all due to any fault on their part. The learned committing Magistrate, who dealt with this case, must have been conscious about the fact that the accused are in custody since June 1968. No serious effort appears to have been made by them to conclude the proceedings within reasonable time. Since August 1972, not a single witness has been examined. In these circumstances I accept Criminal Miscellaneous No. 411-11/1973 and allow bail to the petitioners on the ground of inordinate delay for which they are not responsible They shall be released on tail if they furnish bail bonds in the sure of Rs. 25,000 each with two sureties each in the like amount to the satisfaction of the committing Magistrate.
5. The petition for cancellation of bail (No. 864-B/73) of one of the accused, namely, Mansab Khan, for the above reasons, is consequently dismissed.
6. It may be observed that if, as a result of commitment proceedings, tire petitioners are charged with offence of murder and/err committed to stand trial before the Court of Session, this order shall not be a bar to the learned committing Magistrate acting in accordance with law as to matter of bail.