1980 P Cr (PLP)

This Criminal Miscellaneous petition has been filed by Nazar Muhammad petitioner who had lodged F I R No. 64 of 1:178 under sections‑ 302/34, 148/149, P.P.C. with the Police Station, Pakpattan, District Sahiwal on 24th March 1978, against the accused respondents regarding the murder of his real brother and nephew. In this petition the aforesaid petitioner has applied under section 497 (5), Cr. P. C. for the cancellation of bail granted to the accused respondents Nos. 2 to 7 by this Court on 10th September, 1979. Today the learned counsel for the petitioner as well as respondents 2 to 7 along with their counsel are present. Muhammad Anwar F C 2 Police Station Pakpattan with record is also present.

2. The learned counsel for the petitioner mainly advanced the following reasons for the cancellation of the b‑ 'I allowed by this Court :‑ (i) That tile delay of 1 years in the submission of challan in a case of murder cannot be considered as inordinate delay in law and section 344, Cr. P. C. cannot be considered at this stage as the section is applicable to Courts proceedings on judicial side. (ii) That according to section 497 (1), Cr. P C a person accused of the offence as in the present case shall not be released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years. (iii) That the respondents Nos. 2 to 7 have abused the concession of bail granted to them by way of threatening and intimidating to the prosecution witnesses whose affidavits to that effect have been placed on the file in support of that fact. The learned counsel placed reliance on the following case‑law :‑ (i) Khushi Mohammad v. The State 1978 P Cr. L ‑J 198. (ii) Barkhurdar v. Liaqat Ali and 2 others P L D 1977 S C 434_ On the other hand the learned counsel for the accused respondents while controverting the above raised contentions vehemently argued that the authorities cited by the learned counsel for the petitioner cannot be attracted to the facts of the present case on the ground that the ground of delay taken in the instant case was relating to the submission of challan and not with regard to point of delay in the trial by the Court. He further argued that under the Criminal Law remand has been classified into two categories : (i) personal remand (ii) Judicial remand. Personal remand is governed by section 167, Cr. P. C. while the judicial remand is regulated by section 344, Cr. P. C. According to him under section 344, Cr. P. C. a Court can adjourn a case on account of any sufficient ground for 15 days and the failure by police to file challan for. months together w1th0111I indicating any formidable reason for delay does not entitle a trial Court to go on mechanically adjourning a case for an indefinite period of time. The fact that the police had taken months to investigate truth or otherwise of F I R, indicates that the case calls for further inquiry and hence falls within purview of section 497 (2), Cr. P. C. He contends that section 344, Cr. P. C. gives no licence to a trial Court or to police to delay an investigation or trial for unreasonable time without showing good cause and sound reasons reduced into writing. He maintained that adjourning case for months on grounds that a case was under scrutiny by prosecution branch should not be justified as such repeated adjourn ments on such grounds adversely affect accused under custody anti entitle him to bail. In the instant case the accused respondents were in judicial lock‑up for about 1 year but no challan was put up in the Court concerned and were lodged in jail as under trial prisoners without trial in clear violation of section 344, Cr. P C. In support of his above submissions he cited the following authorities on the point :‑ (i) The State v. Samiullah Khan and others P L D 1959 Kar. 157. (ii) Darshan Singh and other v. The State and others P L D 1957 Kar. 210. (iii) Muhammad Ztkariya v. The State 1969 P Cr. L J 356. (iv) Bachal Shah and others v. The State 1969 P Cr. L J 47. (v) Muhammad Aslant and 2 others v. The State P L D 1974 Note 104 at p. 156. (vi) Amir v. Bakhshu etc. P L D 1975 Lah. 625. (vii) Mahmood Ahmad v. The State 1976 P Cr. L J 866. (viii) Decision in Cr. Misc. No. 4241/B of 1976, dated 25th November 1976. (ix) Decision given in Cr. Mist. No. 1538/B of 1977, dated 30th May 1977. (x) Cr. Mist. No. 4862/B of 1977 dated 18th December 1977. (xi) Ghazi and 6 others v. The State P L D 1977 B J

20. The above authorities cited by the learned counsel are on all fours and fully support the above contentions raised by him. On the basis of consistent view taken in the chain of authorities referred to above I find myself in agreement with the submission made by the learned counsel for the accused respondents. The case‑law cited by the learned counsel for the petitioner in support of his contentions has no relevancy with regard to the facts of the present case. In Barkhurdar v. Liaqat Ali and 2 others which has been relied upon by the learned counsel for the petitioner the facts were quite different as the Supreme Court had twice cancelled the bail allowed to the respondents and the violation of mandatory provisions of section 344, Cr. P. C. was not in question. Even in that authority their Lordships of the Supreme Court approved the dictum previously laid down by that august Court in 1973 in Muhammad Sadiq v. Muhammad Shafiq(1973 S C M R 212) as laying down a correct legal proposition on the point in question which may be reproduced as follows :‑ "It is true that the view of this Court has consistently been that mere delay by itself is not a sufficient ground for the grant 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." In the instant case admittedly challan against the accused respondents had not been submitted in the Court although a period of 1 J years had elapsed. Remand to custody under section 344, Cr. P C can be obtained only if Court postpones the commencement of inquiry or trial but postponement of commencement of .the inquiry is a step in the judicial proceedings which can be taken only after cognizance is taken of the offence first. Unless cognizance is taken of a case, commencement of inquiry Cannot be postponed nor can an accused person be remanded to custody. Detention becomes illegal if the provisions of section 344, Cr. P C are violated.

4. Having confronted with the situation the learned counsel for the petitioner submitted that the challan against the accused respondents was submitted on 10th October 1979, i.e. after one month from the date of grant of concession of bail by this Court and the same has been made over to Additional Sessions Judge for disposal where the proceedings may commence very shortly. On the basis of these facts he argued that the ground of delay in the submission of challan has now lost its importance at this stage and the bail granted to the accused respondents be recalled. I am afraid this contention has no force, for this reason that having once exercised my discretion to allow bail it cannot be recalled in the. absence of substantial reasons such as misrepresentation or suppression of real facts. The impugned order was passed on 10th September 1979, and was correct when passed in the light of the circumstances as they then existed and the events which have taken place subsequently cannot be made the basis of obtaining the reversal of that order. Reliance may be placed upon a dictum laid down by the Supreme Court in Mehr Ghulam Nabi v. Muhammad Shafiq (1979SCMR479).

5. As regards the allegations of abusing the concession of bail by the accused respondents, no implicit reliance or credence can be placed upon affidavits placed along with the petition especially under the circumstances when certain counter affidavit have also been placed by the learned counsel for the accused respondents on the file today in their. rebuttal. Moreover the provisions of section 497 (5), Cr. P. C. regarding the cancellation of bail are not available to private parties to satisfy their grudges against each other or to use as a means of taking their vengeance except in the cases where there is convincing evidence that the accused was abusing the concession of bail to divert the course of justice.

6. The upshot of the above discussion is that I find no just reasons to recall my previous impugned order granting the concession of bail to the accused respondents. The petition has no force and the same is dismissed. Petition dismissed.