GUL MUHAMMAD and anothers vs THE STATE

1. ' It is contended by Mr. Manzoor Hussain Ansari learned counsel for applicants Gul Muhammad and Sain Bux that an earlier bail application being Criminal Bail Application No,234 of 2000 on behalf of present applicants and two othe -s was rejected by this Court (Mr. Justice Faiz Muhammad Qureshi, as he then was) on 27-10-2000. While rejecting the said bail application a direction was given to the learned trial Court to examine three material witnesses namely Ail Dino (complainant), P.Ws. Arbab Ali and Fateh Muhammad whose evidence is mainly on the point of last seen, within two months from the date of the receipt of the order and thereafter, the applicants/accused were allowed to repeat their bail application before the trial Court. Mr. Ansari learned counsel for the applicants has referred to the case diaries with effect from 24-10-2001 to 4-6-2002 to show that there is no progress in the case and the compliance of the direction of this Court has not been made and even no charge has been framed. While touching the merits of the case he has argued that there is evidence of last seen which is the only piece of the evidence against the applicants and that since 24-2-2000 when the applicants voluntarily surrendered before the learned trial Court, they are continuously in custody. Though the ground of statutory delay is not available to him but the delay in disposal of the case particularly when direction issued by this Court has not been materialized, appear to be shocking and scandalous. The learned counsel has placed reliance on the case of Gul Hassan Panhiyar v. The State (1997 SCM R 390) where bail was granted to the accused who was in custody for over six years and despite direction of the High Court to conclude his trial within six months not a single witness was examined.

2. ' Mr. G.D. Shahani, learned Additional Advocate-General has opposed to the grant of bail and argued that the earlier application was dismissed on merits. However, so far non-compliance of the direction of this Court is concerned learned Additional Advocate-General states that the case diaries are clear on the point and in fact the orders of this Court could not be implemented for various reasons as shown in the case diaries however there appears to be no role of applicants in delay in disposal of the case or non-compliance of the order of this Court.

3. ' I have considered the arguments advanced by the learned counsel for the applicants and learned Additional Advocate-General.

4. ' The delay in conclusion of the trial is a relevant factor and has weighed even with the apex Court for grant of bail in appropriate cases.

5. ' Reliance can be placed on the case Manzoor Khan v. Kamir and 4 others (1972 SCM R 207) wherein it has been held as under:-- "It is not the intention of the law to keep under trial prisoners, including those charged with capital offences without trial for inordinately long periods without any satisfactory explanation or reason to justify that action. We do not see any valid ground for interference with the discretion exercised by the learned Single Judge in the High Court in this matter."

6. ' In the case of Muhammad Sadiq v. Muhammad Shafi and another (1973 SCM R 212), the Honourable Supreme Court declined to cancel the bail granted to an accused whose case was being adjourned from time to time for no fault on his part who was bailed out after about an year bang in custody. The relevant observations made by the Honourable Supreme Court are reproduced as below:-- "Mr. Abdul Aziz Qureshi, learned counsel for the petitioner, has contended that the respondent has been granted bail on the ground that although more than one year has passed, not much progress has been made in the commitment proceedings. The petitioner has filed uncertified copies of the proceedings before the committing Court and it appears that through no fault of the respondent the commitment proceedings had been adjourned from time to time and the respondent has been kept in jail on that account.

7. ' After hearing the learned counsel for the petitioner, we are satisfied that this is not a fit case in which the bail should be cancelled by an interim order. The respondent will remain on bail during the pendency of the appeal. The petition is dismissed."

8. ' In the case of Sherzaman v. Muhammad Azad and another (1978 SCM R 248), the Honourable Supreme Court declined to cancel the bail granted by the High Court to an accused who was in jail for 28 months.

9. ' In the case of Khalid v. The State (1994 PCr.LJ 12), after considering the above-referred authorities and some other cases on the point a learned Single Judge of the Lahore High Court granted bail to an accused who was facing trial under sections 304, 34, P.P.C. And was behind the bars for last two and half years by holding that after omission of 3rd and 4th provisos to section 497, Cr.P.C. The pre- amendment position of law stands restored and Court enjoys discretionary powers to grant bail on the ground of delay in conclusion of trial.

10. ' Keeping in view the case-law as cited above as well as the facts and particularly the fact that the only piece of evidence against the applicants is that the deceased was lastly seen in their company and that the applicants are continuously in custody for more than 2-1/2 years and despite direction from this Court, the learned trial Court has not been able to comply with the same, the delay appears to be shocking and scandalous.

11. ' Resultantly bail is granted to the applicants in the sum of Rs,300,000 (Rs, Three lacs only) each and P.R. Bond in this like amount to the satisfaction of the learned trial Court.