P L D 1977 Supreme Court 434 (PLP)

MUHAMMAD AFZAL CHEEMA, J.-Barkhurdar petitioner herein is father of Banaras deceased whose dead body was recovered lying in the National Park, Rawalpindi, on 18-10-1972. In the course of investigation, respondents 1 and 2 along with a third accused Muhammad Iqbal were found to be responsible for the murder. Their petition for bail before arrest was allowed by the High Court vide order dated 27-10-1972 to enable them to move the Sessions Judge who refused them bail on 7-12-1972. They again moved the High Court and were allowed interim bail on 21-12-1972 which was subsequently confirmed on 9.2-1973. The petitioner challenged that order in this Court through Petition No. 55 of 1973. Leave was granted and the appeal was accepted, vide this Court's order dated 5-6-1973 with the result that bail allowed to the respondents was cancelled. This concluded the first round of litigation. On 10-12-1973 the respondents moved the Inquiry Magistrate and surprisingly enough were allowed bail by him on 12-2-1974 notwithstanding the order of this Court. Bail was again cancelled by the Sessions Judge on 15-4-1974. The respondents then moved Criminal Misc. No. 1718-B of 1974 in the High Court which was dismissed by a learned Judge on 10-6-1974 with the direction that the inquiry may be completed within two months. This could not be done presumably owing to the pre-occupation of the Magistrate, with Election duty. On this ground the respondents moved Criminal Misc. No. 3094-B of 1974 which was allowed by another learned Judge, vide order dated 18-11-1974. The petitioner moved a petition for cancellation of bail before him which was dismissed on 17-1-1975. He then filed Petition for Leave to Appeal No. 51 of 1975 ie, this Court. Leave was granted and the appeal was again accepted by this Court cancelling for the second time bail allowed to the respondents, vide its order dated 16-2-1976. This concluded the second round. In the order of this Court dated 16-2-1976, an observation was made that in the event of inordinate delay the -respondents could renew their application. Having hardly waited for 21 months, the respondents again moved the Sessions Judge on 24-4-1976 and their application was dismissed by the Additional Sessions Judge on 7-5-1976. This order was successfully challenged by them in the third round before the High Court which allowed their Criminal Misc. No. 2157-B of 1976 ride order dated 12-7-1976. It was from this order that leave to appeal was sought which was granted vide this Court's order dated 27-10-1976. Learned counsel for the parties are present with Assistant Advocate General for the State. the sole question for consideration before us is as to whether the delay in the circumstances of the case justified the grant of bail as held by the learned Judge in the High Court. In support of the appeal, learned counsel has relied on the following authorities wherein it was held that delay per se would not be a good ground for the enlargement of an accused person charged with murder. Muhammad Nawaz and others v. The Sate 1968 S C M R 683, Ahrar Muhammad and others v. The State P L D 1974 S C 224, Fateh Muhammad and others v. The State and another 1975 S C M R

354. Of these Ahrar Muhammad and others v. The State is more elaborate. In the judgment handed down by Justice Mr. Hamoodur Rehman, former Chief Justice of Pakistan, reference was also made to the decisions of this Court reported as Riasat Ali v. Ghulam Muhammad P L D 1968 S C

353. Manzoor v. The State P L D 1972 S C

81. Manzoor Khan v. Kamir 1972 S C M R 297 and Muhammad Sadiq v. Muhammad Shafiq 1973 S C M R

212. In the last-mentioned case inordinate delay in the trial Court was considered to be a good ground for grant of bail in murder cases. The correct legal position was however, beautifully summed up in the following words ; "It is true that the view of this Court has consistently been that mere delay by itself is not a sufficient ground for the granting of 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 law as to why it cannot be treated as a sufficient ground for the granting of bail. If such delay can be sufficient for quashing a criminal proceeding, then it can also be an equally good ground for the granting of bail." On the other hand, learned counsel for the respondents has tried to argue on the basis of the new , provision contained in section 426 (1-A) of the Cr. P. C. introduced by the Law Reforms Ordinance that the question of delay in the disposal of appeal by a convict when the initial presumption of his innocence stood rebutted had been given statutory recognition by this new provision and it could be logically inferred from this that the same consideration would apply a fortiori to bail matters where the initial presumption of innocence is fully available to an accused. It is next submitted that in the concluding portion of the earlier order of this Court dated 16-2-1972 cancelling the bail allowed to the respondents by the High Court, it was clearly observed that the respondents could renew their application in the event of delay. It is further submitted that when approached, the learned Judge in the High Court called for a report from the Sessions Judge, Rawalpindi, as to the chances of trial of this case which were found to be rather remote taking about 2J years in the ordinary course. It was on that account that the learned Judge justified the grant of bail to the respondents. Reliance is also placed in this regard on an unreported order of this Court dated 20-12-1976 in Criminal Appeal No. 119 of 1976 Riasat All and another v. The State. In this case a delay of about 2J years was considered to be unconscionable and inordinate enough to justify the grant of bail. The learned Assistant Advocate-General has supported the appeal for cancellation of bail. In reply to the contention raised by the respondents' counsel on the basis of section 426 (1-A) of the Cr. P. C., wherein delay in the disposal of appeal by a convict beyond a prescribed period had been statutorily recognized as a good ground for suspension of the sentence, it Is submitted that earlier the Law Reforms Ordinance of 1972 contained a similar provision in Item 163 virtually applying the rule of thumb in the matter of grant of bail if the commencement of trial was delayed beyond a certain specified period of time, but subsequently taking . a more realistic view the Legislature in its wisdom deliberately deleted this item and therefore, no argument on the basis of analogy of section 426 (1-A) of the Cr. P. C. would be available to the respondent in this regard. Having heard the learned counsel for the parties we feel that unfortunately an impression of a conflict of views in matters of bail on ground of delay has gained ground. We may, however, reiterate that the legal position admits of no equivocation or uncertainty inasmuch as it is no delay per se in all cases of murder regardless of its responsibility or other circumstances that would justify the grant of bail. It is only such inordinate delay as amounts to abuse of the process of the Court that would justify grant of bail. Most regrettably however, in the peculiar circumstances with which the Courts are confronted, namely, the acute inadequacy of manpower in the judiciary and the huge accumulation of files at the District level, particularly since after the abolition of commitment proceedings, two to three years' delay in the commencement of trial as a matter of course seems to be quite inevitable. The unprecedented filing up of murder cases awaiting trial and the resultant congestion in jails owning to a large number of under trials has created an unparalleled situation. While on the one hand under trial prisoners at detained for two to three yeas and even more W, some cases, the Courts cannot afford to make discriminatory orders granting bail on ground of delay in one case and refusing it in another for the sauce reason. Be that as it may, however, in the circumstances of the instant case. we are inclined to think that since this Court had twice cancelled the bail allowed to the respondents on 5-6-1973 in the first instance and on 16.2-1976 subsequently, the High Court should have been rather cautious and slow to exercise its discretion for the third time. The concluding observation made in this Court's order dated 16-2-1976 allowing the respondents .to renew their application in the event of inordinate delay could not have been) justifiably made a pretext to reagitate the matter within 2 months. The learned Judge in the High Court has not referred to this background and they multiple orders of this Court made in the course or previous proceedings We are afraid, if bail were indiscriminately allowed on the sole ground of inordinate delay alone however other regrettable, by the Rule of Thumb as it were, then every accused charged with murder shall have to be released. This in our opinion would be an avoidable act of judicial extravagance in palpable derogation of the ends of justice rather than in furtherance thereof. Having considered all the pros and cons, we are satisfied that this appeal merits acceptance. It is accordingly allowed and the order of the High Court is set aside. The Assistant Advocate-General has once again informed us that in order to meet this critical situation, the Provincial Government is going to have a package deal by having recourse to a bulk recruitment of Additional Sessions Judges on contract basis. We hope that the Government realises the gravity of the situation and take immediate steps to redeem it. S. A. H. Appeal accepted.