1. ' The brief facts leading to this application are that the two applicants were originally arrested on 2-12-1972 le. Five years back, and are since then alleged to be in custody, as they are facing trial for offences under section 302/34 for having caused the murder of one Mohsan Ali. The offence took place on mid of the day in Karachi Gali No, 2 a thickly populated area of Karachi, and the F. I. R.
2. Which was lodged by one Younus All eon of Bahadur All brother of deceased at 12-25 p.m. On the same day was in the following terms.
3. "Our shop known as "Abbasi Chemical" is situated in Kachhi Gali No,
7. At the distance of few paces away, is the shop of Chemicals belonging to Farooq and Yonsuf. Sometime back we had a quarrel over money transaction with Yousuf and Farooq and that case is pending in the Court. Today at 12- 00 noon, when my brother Amirali was going out of the shop for some work, Farooq and Yousuf started beating him, when my brother Mohsin and myself reached there to intervene, but Farooq and Yousuf took out knife and stabbed Mohsin in the abdomen and Amirali on the thigh and the back. I was also injured on the right hand and the back, with the knife. This incident was witnessed by Muhammad, Ali Hussain, Jafferbhoy and many other people of bazaar. We have now come to report. The condition of my brother Mohsin is bad. My case is against You& and Farooq for having stabbed us with knife with the intention to murdering us."
4. ' The case was after due investigation sent up to a committal Court, at Karachi.
5. ' During the committal proceedings, applicant Yousuf was granted bail by the Court of Session but it was subsequently cancelled on 12-2-1974, by an order passed by Mr. Justice Abdul Hayee Qureshi. This order was challenged by filing an application for Special Leave to Appeal in the Supreme Court which was dismissed on 194.74. While dismissing the application their Lordships of the Supreme Court observed as under ."It is submitted that the commitment proceedings are pending and so far 13 witnesses have been examined. In these circumstances it would be desirable to consider the merits of the case and to come to the conclusion whether the petitioner is prima facie guilty of the offence or not. We have gone through the order of the High Court and are satisfied that the High Court has exercised the discretion vested in it properly. The petition is dismissed. We would, however, direct the committal Court to complete the proceedings as early as possible. Atter the commitment proceedings are completed the petitioner will be entitled to move an application for grant of bail. We would further direct that any observation made by the High Court will not be taken into consideration for deciding the case."
6. This appears to be the first direction for proceedings with the case expeditiously and it is said that the case was committed to the Court of Session on 5-6-1974. ' two witnesses had been examined in the Court of Session, it appears that an application for bail was again moved in the High Court but the same was rejected by an order dated 13-5.1975.
7. However, the learned Single Judge, who passed the order stated, "Mr. Muhammad Hayat Junejo has made a grievance that the proceedings in the case have taken sufficiently long time. I fully agree with him and I must express a view that the Sessions Court when proceeding with the trial, should, unless there be compelling reasons to the contrary, proceed with the trial from day to day.
8. Any deviation in the mode of trial is likely to result in unnecessary trouble to the accused, witnesses and counsel, apart from the prejudice to the accused at the trial. Mr. Muhammad Hayat Junejo has stated before me that he would be satisfied if a direction is given by this Court to the Additional Sessions Judge to proceed with this trial from day to day. To such extent the Additional Advocate- General and Mr. S. S. Shaikh also agrees.
9. ' While dismissing this bail application I direct the Additional Sessions Judge to proceed with this case from day to day and report compliance to this Court after a month".
10. ' This direction, therefore, was in the submission of the learned counsel for the applicant given to the trial Court In somewhat more strong terms, considering the delay that was being caused in proceeding with the case but it was literally complied with or not, the case reached the stage of recording the statement of the accused and for final arguments, because the accused did not lead any defence after entire evidence of the prosecution was completed. At that stage the trial Judge Mr. Azia Ahmed Qureshi was suddenly transferred to Sanghar/ and was posted as an Additional. Sessions Judge there. The applicants thereafter moved the High Court for transfer of the ease to Sanghar, which application was disposed of on 16-2-1976, by saying that Mr. Aziz Ahmed Qureshi may instead be appointed as Ex Officio Additional Sessions Judge, Karachi for disposal of this case. According to the learned counsel for the applicant, the said Judge recorded the statement of the accused and heard the final arguments on 12-8-1976, and adjourned the cue to 24-8-1976 to, judgment. This is also borne out by the photostat copies of the diary of the case produced by him.
11. ' The learned counsel then pointed out that at this stage the complainant Younis Ali made a transfer application dated 17-8-1976, bearing No, 24/1976 in the High Court praying for transfer of the case from the file of Mr. Ariz Ahmed Qureshi to some other Judge and also in the meantime to stay the proceedings, which meant only the pronouncement of the judgment. Personal allegations were made against the trial Judge that on 12-8-1976, during the course of the arguments he had several times expressed that the accused were entitled to the benefit of doubt and that the prosecution evidence was not worthy of belief. Even after the conclusion of the argument on 12-8- 1976, it was alleged, the Assistant Public Prosecutor appearing in the case for the prosecution was approached in his office by Amir Ali the complainant's brother and had found that the trial Judge was sitting in the said o ce of the Assistant Public Prosecutor. The A. P. P. Bad expressly told him that the judgment had been already written and the accused had been acquitted. This Transfer Application No, 24/1976 was admitted by the learned Chief Justice who also granted stay. However, on 29-9-1976, final order was passed, which being a short one is reproduced 1-- "Since Mr. Aziz Ahmed Qureshi Ex officio Additional Sessions Judge, Karachi, has been transferred and posted as Deputy Secretary in the Ministry of Law, Islamabad, Mr. S. S. Shaikh does not press this transfer application. It is accordingly dismissed as withdrawn."
12. ' As the stay order had earlier been granted, the judgment proposed to be pronounced on 24.8- 1976 could not be so pronounced.
13. ' An abnormal situation therefore, came to arise in this case, which had otherwise virtually come to its end and in which only the judgment was to be announced. It could not be finalised in spite of what had been stated by the High Court and the Supreme Court in their earlier orders for expeditious disposal.
14. ' In these circumstances an application for bail was once again moved in the High Court being No, 264/76, which was also heard and disposed of by the learned Chief Justice on the same date I.e. 29-9-1976, and the following order was passed - "Mr. Muhammad Hayat Junejo does not press the bail application if the proceedings before the trial Court are ordered to be expedited. The case against the petitioner was registered in 1972 and the request for the expeditious disposal is only legitimate since Mr. Alia Ahmed Qureshi Ex Officio Additional Sessions Judge, Karachi who was dealing with the case has now been transferred sad posted as Deputy Secretary in the Ministry of Law at Islamabad, the case will be dealt with by the successor in office. In view of the facts and the cis cumstances of the cue, however, the Sessions Judge, Karachi to try this case personally and dispose it of as expeditiously as possible. The bail application is, however, dismissed as not having been pressed."
15. ' Mr. M. H. Shah has filed the copies of the diaries of the Sessions Judge, Karachi to show how expeditiously the case was being dealt with in view of the di: actions of the learned Chief Justice, and he pointed out that it was for the first time on 2-2.1977. That charge was read out to the accused and their plea recorded. Although P. Ws. Were present the case was adjourned only after the opening address of the A. P. P. From 2-2.1977 till 29-8-1977, the learned Sessions Judge had adjourned the case for 19 dates of hearing and at no single time for the fault of the accused. The last diary of the Sessions Judge dated 29-8.1977 shows "two accused in custody produced. Defence counsel and A. P. P. Present. Three P. Ws. Are in attendance. On account of election work case put up to 18-9-1977 for evidence. Accused remanded to custody to be produced on the date of bearing. P. Ws. Present are directed to attend the Court".
16. ' Learned counsel for the applicant, in view of the facts stated above vehemently argued that the High Court at one stage had desired case to proceed from day to day. Whereafter the Supreme Court also considered this to be a case which should be proceeded with as expeditiously as possible. The learned Chief Justice in disposing of the bail application of the petitioner, which was not pressed had specifically directed the trial of this case to be held by the District and Sessions Judge, personally. One of the applicants bad at one stage been granted bail also which had been cancelled and the applicants were made to understand that the case will proceed from day to day. The second Bail application before the High Court was also not pressed upon a similar consideration. The accused had remained in custody during the proceedings before committal Court and thereafter in the trial Court. The trial had reached the stage when only the judgment was to be announced. This was hampered by the complainant party by filing an application for transfer, the merits of which need not be commented upon. By now the accused had remained in custody for a period of five years and the case against them is yet to be started afresh. Their remaining in custody and delay in proceeding with the case is such which could clearly be considered as an abuse of tte process of law. He relies on the case of Ahrar Muhammad and others v. The State (1), where it has been observed by their Lordships of the Supreme Court, at page 227 that :- "It is true that the view of the Court has consistently been that mere delay by itself is not a sufficient ground for the granting of the bail ; but, at the same time, it cannot be said that, inordinate or unjustified delay in the prosecution of a case amounting to an abuse of process of law can never be taken into account as relevant ground for the granting of bail. If the delay is so inordinate or so scandalous or so shocking as to amount clearly to an abuse of the process of law there can be no reason either in principle or in the law as to why it cannot be treated as sufficient ground for the granting of bail. If such delay can be sufficient for washing a criminal proceeding, then it can also be an equally good ground for the granting of bail.'
17. ' The above observation according to the learned counsel did support his case fully. This view of law had been followed in many other cases subsequently. The learned Assistant Advocate-General however, opposed the application and for that purpose referred to the case of Burkhurdar v.
18. Llaquat All and 2 others (2). But I find that only that case is based on different facts, but the principle laid down in the case of Ahrar Muhammad {{FOOT NOTE}}
(1) PLD 1974 SC 224 (2) PLD 1977 SC 434 {{FOOT NOTE}} and others v. The State has been recognised as a correct legal position of law and adopted as such.
19. The accused were arrested so far back as 2-12-1972. The case was to start a new by the direction of the Chief Justice given in his order dated 29-9-1976. He had further directed that the case be tried by the District and Sessions Judge, himself and not by an Additional Sessions Judge only because be considered this to be a case which required special attention. The Sessions Judge should have proceeded with the case from day to day a was directed in one of the earlier orders passed by this Court. Even then it is evident that a period of full 12 months has been allowed to lapse A without any progress in the matter. It appears to me to be a case in which the delay caused is patently shocking and for which no blame can be put on the applicants. Being in respectful agreement with the observations of their Lordships in the case of Ahrar Muhammad v. The State quoted abov I allow this application. The applicants are granted bail in the sum of Rs, 25,000 each with one surety and PR bond in the like amount to the satisfaction of this Court or the trial Court.