P L D 1973 Lahore 486 (PLP)

All the learned counsel appearing on behalf of the State Including Mr. Kamal Mustafa Bokhari, Assistant Advocate- General, vehemently contested the proposition of law put forward from the petitioners' side. The main argument from the side of the State is based on the wording of subsection (2) of section 1 of the Ordinance which reads as follows :‑ "Short title and commencement.‑(1) . . . .. (2) It shall come into force at once, except the provisions of the Schedule relating to amendments in the Code of Criminal Procedure, 1898 (Act V of 1898), which shall come into force In any Province with effect from such date not later than the first day of January 1973, as the Provincial Government thereof may, by notification in the official Gazette, specify in this behalf." As the provisions of the Schedule relating to amendments in the Code of Criminal Procedure, one of which is being relied upon by the learned counsel for the petitioners, have not, as put by the learned Assistant Advocate‑General come into force, therefore it is contended that the petitioners cannot get any benefit there from. The matter is not that simple. In my view, the argument of the learned counsel for the petitioners has force and must succeed. I proceed to give my reasons for this view. The relevancy of question of delay in criminal matters has always been emphasized by superior Courts in this country as also in other countries where civilized laws on criminal justice are in force. The general principle underlying the various con cepts about delay in criminal matters, namely, justice delayed is justice denied is well known. Out of many, one possible reason that is found mentioned in old authorities, is that in public prosecutions the Investigating Agency collects and preserves the material which is subsequently used by the Prosecuting Agency against the accused at his trial. No such handy machine is avail able to the accused for collection and preservation of his evidence. if the trial is prompt there are more chances of the accused being able to produce the material which might then be readily available in support of his plea. But if the trial is delayed inordinately, in many cases the accused would lose this opportunity by mere influx of time and in some, due to disappearance or non‑availabl lity of witnesses. In so far as the principle, therefore, is concerned, it is based on sound logic. In Pakistan, the question of delay in criminal matters has been dealt with separately into almost water -type compartments‑one, in proceedings under section 561‑A, Cr. P. C., wherein the accused wants the quashment of the proceedings in the case itself on the ground of delay; and two, when under section 497, Cr. P. C. bail is sought on account of inordinate delay in the conclusion of the proceedings. Till 1965, the superior Courts decided many cases granting relief under section 561‑A, Cr. P. C., on ground of inordinate delay treating it as abuse of process of the Court. But a change came in the law (as declared by the Supreme Court) by the decision in the case of M. S. Khawaja (P L D 1965 S C 287) which was subsequently confirmed in the case of Ghulam Muhammad (P L D 1967 S C 317). Their Lordships made the following observation in the latter case :‑

"The respondents next urge that the High Court's order being based upon reasons which are not altogether irrelevant should not be interfered with by this Court, since the proceedings having started in 1958, nine years have now elapsed. We are not impressed by this argument. The reasons given by the High Court were, by no means, cogent. If, in fact, an offence had been committed justice required that it should be enquired into and tried. If the respondents are not guilty they have a right to be declared as honourably acquitted by a competent Court. On tire other hand, if the evidence against the respon dents discloses a prima facie case then justice clearly requires that the trial should proceed according to law. The mere fact that a long period has expired since the initiation of proceed ings is no ground for quashing the criminal proceeding as was pointed in the case of M. S. Kitawaja v. The State." The consideration of delay as a ground for bail in murder cases has, however, a more chequered history. The principle earlier noted of `justice delayed justice denied' has never been controverted. The delay has been considered as most important question in this behalf also. I cannot do better than to quote an observation from a recent judgment of the Supreme Court in the case of Manaoor (PLD 1972SC81) that "the ultimate conviction and incarcera tion of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run." Earlier well‑known cases on the question of delay are Gushtasab Khan v. Crown (PLD 1956FC 117), Abdul Hayte Khan v. The State (P L D 1958 S C (Pak.) 169), Hamid Hussain v. The State (P L D 1960 Lah. 498) and Bashir Ahmad v. State (P L D 1966 Lah. 144). However, it was in the case of Riasat Ali (P L D 1968 S C 353) that their Lordships of the Supreme Court most clearly laid down that "inordinate delay in the prosecution of a case, if not explained by the prosecution amounting to an abuse of the process of law, can be considered as a ground for bailing out au accused person even in a murder case depending on the nature of the delay and the circumstances that have caused it" In the case of Dost Muhammad (1) I have had the occasion of commenting on the two separate conclusions having been reached in matter of delay‑one, under section 561‑A, Cr. P. C., and the other under section 497/498, Cr. P. C. As discussed above, under one provi sion of law even delay of about nine years (Ghulam Muhammad's case) was not treated as abuse of process of Court for purpose of quashment and in the other, inordinate delay if unexplained, could be considered as abuse of process of law and Court. I had then considered all the pros and cons of the subject and had pointed out the above seeming conflict but had left it unsaid that the law needed clarification if not, an outright amendment. After a year of the decision in the case of Dost Muhammad in November 1970, I again considered this question in the case of Dara (P L D 1971 Lah.391) and pointed out two cases decided by the Supreme Court‑one, in appeal from the same case of Dost Muhammad, and the other of Muhammad Nawaz (1968 S C M R 683) where delay, in itself, was not considered as ground for granting bail in a murder case. In one of these cases, the delay was of about four years. I must admit that I did make an attempt to reach a consistent conclusion but not without difficulty; therefore, it was suggested in Dara's case that "it may be desirable for the Legislature to consider the question of amending the proviso to subsection (P L D 1971 Lah. 381) of section 497, Cr. P. C., so as to cover such like hard cases". Hard cases, which I had referred to, were of delay simpliciter when it could not be given as a finding that it was due to abuse of process of law and Court nor it could be said that it was due to any fault on the part of the accused person. Till then, my interpretation of the then latest view expressed by the Supreme Court in some of the cases was that delay simpliciter, even if there was no fault on the part of the accused, could not be a ground for bail in a murder case. It appears that either I did not properly understand the rulings of their Lordships or the view was subsequently modi fied because in some more recent cases their Lordships treated long delay ampliciter as good ground for bail. I have already cited the case of Manzoor wherein the principle that the wrong involving 'incarceration' of an innocent person cannot be repaired, was laid down. But a more concrete exposition of the law on the point i3 contained in the case of Maula Bux v. State (1971 S C M R 196). It was decided in March 1971 and I presume that the earlier conflict of opinions on this subject must have been in their Lordship' view. I, therefore, treat this ruling as of high importance. 1n a murder case wherein six persons were killed, about a dozen persons were involved as accused. Warroo and another accused were released by the learned Sessions Judge on the ground of delay of several years, one of the reasons whereof was that the attendance of some of the accused could not be procured. Distinction, however, was made in respect of the four petitioners (before their Lordships) and they were refused bail even by the High Court. It was held as follows :‑ "The delay in bringing the petitioners and their co‑accused to trial and the laches shown by the prosecution were sufficient grounds for releasing the petitioners on bail as was done in the case of Warroo and another ca‑accused. The distinction made by the Sessions Judge that the petitioners had failed to appeal from the order of the Additional Sessions Judge refusing bail to them on merits was in law untenable. The present petition was based on ground of extended delay in the inquiry and the callous disregard of the prosecution to procure presence of some of the accused, but for which the inquiry might well have been completed by now." Their Lordships themselves did not consider it proper to grant the relief because "it would cause further inordinate delay" but the petitioners therein were directed to renew their application for bail before the Sessions Judge who was directed to deal with "their case at par with the case of Warroo and another". I am in no doubt that long delay was treated by their Lordships as by itself a sufficient ground for grant of bail. In yet a more recent case decided in 1972, namely, Manzoor Khan v. Kamir (1972 S C M R 207) the principle laid down in the case of Moula Bux was reiterated and I treat it as law declared that "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". Their Lordships, therefore, refused to interfere with the order passed by the High Court granting bail on ground of delay of more than two years ; one of the causes of which was the non‑production of the accused in Court on several dates of hearing. (I have checked the facts from the original file). In the High Courts, I must confess, the position remained fluid. Sometimes, a delay simpliciter of even ten months was considered as sufficient for bail in a murder case and in other cases involving a delay even of several years where a finding of abuse of process of law and Court could not be given, accused in, similar circumstances were not granted bail. Such like cases are innumerable and well known and it is not necessary to cite them. From the above resume of the law relating to delay in criminal matters, the conclusion can safely be reached that different treatment has been given to question of delay under two subjects of quashment and bail. Inordinate delay was not treated sufficient to warrant a finding of abuse of process of Court under section 561‑A, Cr. P. C. but for purpose of bail on', the assumption of abuse of process, delay has been treated good ground even in murder cases, which normally otherwise fall within the prohibition contained in subsection (1) of section 497, Cr. P. C. On account of this anomally therefore, action by Legislature was long due. One way of dealing with the subject was to give statutory recognition to precedent law on bail, because statutory cover to one branch of precedent law would, by implication, have clarified and kept intact the other. It has also to be presumed that the Legislature knew the conflict in the approach in some decisions by the High Courts in matter of delay but at the same time was aware of the latest declaration of law by the Supreme Court that inordinate delay per se was sufficient to grant bail even in murder cases. It was in the above background that while amending the Criminal Procedure Code extensively, the existing precedent law relating to bail vis‑a‑vis delay in more serious cases, has been codified by adding another proviso to subsection (1) of section 497 ; wherein it has been assumed that delay per se is a good ground for bail in murder cases also ; and the minimum period of delay with the qualification that the accused should not' be responsible for it, has been provided. A question arises‑Can it be said that the Legislature has, in reality, amended the law relating to bail, qua ground of delay ? The answer is to be found in the position of law prevailing before the so‑called amendment. I have made enough comment on it. In my view, according to the law as declared by the highest Court in the realm, delay even before the amendment was considered a good ground for bail in murder cases. If one carefully reads all the rulings in this behalf, the condition laid down in the amendment, that the accused should not be responsible for the delay, can also be clearly spelled out from them. Exact specification of period as done in the Ordinance was not attempted, but inordinate delay has been treated as sufficient. What amounts to Inordinate delay has always been left to be decided according to the facts of individual cases. The fixation of period is only an ancillary matter. Therefore, the answer to the above posed question is that in the Ordinance the Legislature has not brought about any change in the existing law as declared by the Supreme Court of Pakistan. The only intention and purpose underlying the amendment is the adoption of the law on bail (as declared by the Supreme Court) in the form of a statute. Many example can be cited In the legislative history where law declared by superior Courts was subsequently adopted as statute law. Thus the addition of a proviso to subsection (1) of section 497 Cr. P. C. by a seeming amendment falls within the category of declaratory provision in the field of statute. The law is already in operation. Its reiteration or declaration does not need further enforcement. Therefore, this part of the amendment in the above context will be deemed to have come into force on the date of the promulgation of the Ordinance, i.e. 14‑4‑1972, on which day under the normal presumption it would be deemed to have come into force. The provision in subsection (2) of section 1 of the Ordinance, whereby the enforcement of the amendments in the Code of Criminal Procedure, generally speaking, was postponed, would not apply, as discussed above, to the amendment in section 497, Cr. P. C. There is nothing unusual in a part of a statute being declaratory only and, by Implication, operative from the date of enactment; and the other part bringing in fresh enacting provisions being postponed. I, there fore, hold that the relevant provision of law is in force from the day of the promulgation of the Ordinance. In reaching the above conclusions I have taken into account the history of the law, its background and intention of the Legislature. The interpretation and application of a statutory provision in accord with the intentions of the framers thereof is an accepted mode of interpretation in Pakistan. This subject has been discussed in several judgments of the superior Courts and recently I have considered and held it so in the case of the journalists (Writ Petition No. 403 of 1972, decided on 6‑7‑1972). In applying the above principle I have also taken note of an ancillary principle that if there is any doubt with regard to the intention of the Legislature, while interpreting provisions o0 criminal law and procedure, that intention is to be adopted which benefits the subject. Even otherwise if the proposition is examined on the basis of the argument of retrospective application of the provision in question, the same conclusion would be reached with regard to the intention of the Legislature. The latest date till when the enforcement can be postponed is 1‑1‑1973. It cannot at all be canvassed with any cogent force that in the applications for bail which would be presented on 2‑1‑1973, the question of delay that would have occurred before 1‑1‑1973 would not be taken into account. Thus the entire period prescribed in the proviso might have passed during the time when the amendment was, technically speaking, not in force. Therefore, the provision has a retrospective application. Same would be the result if on the afore‑mentioned date, i.e. 2‑1‑1973, longer period of delay which by then would have passed, say by a year's gap, could definitely betaken into account for the purpose of exercise of discretion on the basis of delay. Looked at from whatever angle, the provision is at least in part inherently of retrospective application. Therefore, in terms of time when the present petitions are being considered, the period of delay that has already passed, say five years in one of these cases, can, by virtue of the already declared law and which has now been given recog nition in the statute law, be taken note of for the purpose of considering the question of bail in cases covered thereunder. In the light of the above discussion, I have come to the conclusion that the provision contained in the new proviso added to subsection (1) of section 497, Cr. P. C. is fn force at present and these bail matters can be decided on that basis. I heard some arguments on the question whether these petitions should be decided on merits, but as already noted there is paucity of material, one way or the other; at least with regard to the question of default, if any, on the part of the petitioners in so far as the delay in each case Is concerned. Moreover, as the provision of law Is being interpreted probably, for the first time and it is being held that by virtue of the position of law as at present in force it is discretionary with the Courts to allow bail on ground of delay even in murder cases, therefore, the merits of each case will have to be reconsidered in the light of the above declared position. It is, therefore, proper that the petitioners in these cases should have, at least, two opportunities, if not more, in the hierarchy of Courts available under the Code of Criminal Procedure, so that they could seek the exercise of discretion under section 498 read with section 497, Cr. P. C. first before the Sessions Court, and, if they fail there, then before the High Court. Accordingly, I dispose of these petitions with the direction that the petitioners shall renew their applications for bail before the Sessions Judge concerned who shall re‑consider the question of delay in each case in light of the above interpretation of law. As this re‑consideration will be in exercise of discretion vis‑a‑vis the ground of delay and not for deciding whether a case falls within the prohibition contained in subsection (1) of section 497, Cr. P. C., therefore any earlier orders passed by the Courts including this Court treating these cases as falling within the prohibition would not be a bar to the consideration of question of exercise of discretion on the same facts, but this time, in the context of a different ground, namely the question of delay as contained in the newly added proviso, as interpreted above. However, while deciding these cases afresh on the ground of delay, the condition contained in the provision, namely, absence of any fault from the side of accused‑petitioners, will have to be considered. Once the conditions are satisfied, keeping in view all the circumstances of individual cases it would be for the Court, in its discretion, to decide whether bail should be allowed or refused. The legal question raised in these petitions has already been discussed on the basis of the background and nature of and intention underlying as well as the retrospective application of, the relevant amendment. Therefore, it is not necessary to notice the arguments from both the side: which are based on the literal and technical interpretation of the provision involved; namely, from the side of the petitioner, that by virtue of the decision in Muhammad Afzal's case (PLD1963SC401) the Ordinance is an existing law from the date of its promulgation and thus in full operation ; and, from the side of the State, that this law is not a law In the real sense because it has not the force and support of the State machinery for its implementation, and further that even literally, the enforcement has been postponed till 1‑1‑1973. In the context of the above discussion on the question that appeared to me to be basic for the interpretation of the provision in question, I do not consider it necessary to go into the details of these arguments. It is, however, clarified that In these petitions before me the question Involved was only interpretation of the newly added proviso to subsection (1) of section 497, Cr. P. C. and nothing said in this judgment is meant to apply to the other amendments brought about in the Criminal Procedure Code. Soma of them would, undoubtedly, need the bringing into existence of some additional machinery for which finances would be needed and would also involve doing of certain acts like those mentioned in section 22 of the General Clauses Act of 1897, before the specified date. With the above decision on the question of interpretation of law involved ; the direction in these cases ; and the remarks and clarification made in the foregoing paragraph, these petitions stand disposed of. S. G. D. Order accordingly.