' Mian Qamar Gul Kaka Khel, Advocate learned counsel for the petitioner, Mr. Javed A. Khan, Advocate learned counsel for respondents Nos.1 and 2 and Kh. Azhar Rashid, learned Assistant Advocate-General for respondent No,3/State present and heard. With the able assistance of the learned counsel for the parties I have also gone through the following judgments recorded by the Hon'ble Supreme Court of Pakistan from time to time, in this respect:--
(i) PLD 1968 Supreme Court 353. Present: Sajjad Ahmad, J.
In re: Riasat Ali....Petitioner versus
(1) Ghulam Muhammad and
(2) The State---Respondents.
(a) Criminal Procedure Code (V of 1898) S.497...Bail in non-bailable offence---Delay in prosecution of case amounting to abuse of process of law... A valid ground for bail out accused. Delay in prosecution of case as a ground for bail, however, to be weighed and judged, in each case on its own merits."
(ii) PLD 1977 Supreme Court 434.
Present: Muhammad Afzal Cheema and Muhammad Akram, JJ.
BarkhurdarAppellant versus Liaqat Ali and 2 others....Respondents
(a) Criminal Procedure Code (V of 1898).
' Ss.497 & 498...Bail....Delay..Murder cases...Delay per se in all cases of murder regardless of its responsibility or other circumstances...No justification for grant of bail...Delay amounting to abuse of process of Court...Such delay alone, held, justifies granted of bail...(Delay...Bail).
2. Besides, with the help of the learned counsel for the parties, I have had the advantage of going through the order sheets recorded, by the trial Judge, Mr. Fayazullah Khan, Additional Sessions Judge, Charsadda, on 8-12-1998, 22-12-1998, 6-1-1999, 22-1-1999, 2-2-1999, 10-2-1999, 24-2-1999, 8- 3-1999, 22-3-1999, 6-4-1999 and 15-4-1999 and have come to the following conclusion:--
(i) that as and when the P.Ws. Were present for recording their statements the private counsel representing the complainant used to absent himself;
(ii) that when the complainant's private counsel was present in the Court, the P.Ws. Used to absent themselves and
(iii) that when the complainant's private counsel as well as the P.Ws. Were present the complainant herself, even after having taken oath to be examined as P.W., refused to give her statement on the pretext that she was not feeling well.
3. In view of the above, I am of the considered view that the delay is being caused not by the accused respondents but by the petitioner/complainant.
4. When the situation mentioned above emerged, after going through the record of the case, then the learned counsel for the petitioner submitted that he would not like to press this bail cancellation application provided the Sessions Judge, Charasadda is directed to dispose of the present case on or before 1st of March, 2000 (1-3-2000).
5. Resultantly this bail cancellation application is dismissed as not pressed with the following directions:--
(a) that the parties shall appear before the Sessions Judge, Charsadda on 22-11-1999 positively;
(b) that the office shall send the record of the case to the Sessions Judge, Charsadda within 3 days under intimation to my Private Secretary;
(c) that the Sessions Judge, Charsadda shall conclude the murder trial before 1st of March, 2000 (1-3-2000) as only four (4) witnesses are left to be examined as P.Ws. And
(d) that if the delay in the disposal of case is caused in future because of any act of the respondent---accused then in that case the petitioner/complainant shall be at liberty to move bail cancellation application before the Trial Court.