1981 P Cr (PLP)

As against this, it has been argued on the opposite side that the delay per se is no ground for releasing the accused on bail ; and that the delay has occasioned due to the unavoidable circumstances beyond the control of the District Criminal Court. The question, which requires determination, is, whether the delay caused amounts to misuse of process of the Court sufficient for enlarging the accused on bail ? The accused are also charged under section 58, A. P. C. which carries with it the punishment for 14 years. An accused person in such a case normally cannot be released on bail unless there appears miscarriage of justice in the discretion exercised by the High Court in refusing bail so as to call for the interference of the Supreme Court. But each case has to be decided on its own merits, depends on the nature of the delay and circum stances. In this petition, the points which require authoritative judgment are:- (i) whether the learned District Criminal Court has flouted the order of the High Court passed on their first application ? (ii) if the answer is in affirmative, whether in the circumstances of the case, it can be said that there has occasioned inordinate delay in the prosecution of the petitioners, which amounts to abuse of the process of Court ? and (iii) Whether the learned Judge in the High Court has not exercised the discretion in a judicious way in refusing bail to the petitioners accused ? The question of inordinate delay has received some consideration in a case reported as P L D 1968 S C

353. It has been observed at page 355:- "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 an accused person even in a murder case depending on the nature of the delay and the circum stances that have caused it. The prosecution is expected to proceed with its case with all despatch eliminating every avoidable delay in order to bring it to a close and thus to determine the fate of an accused person which hangs in the balance as long as the proceedings do not terminate one way or the other. The prosecution cannot be permitted to enlist the will of the Court or its side directly or indirectly in prolonging the worries and harassment of an accused person which are inevitably caused by his protracted detention without trial. Leisurely steps taken in filing the challan tardy and halting production of evidence or seeking of unnecessary adjournments, except those necessitated by force of circumstances must be strongly deprecated. But delay in the prosecution of a case or the procrastination of the proceeding in a trial furnishing as a ground for bail have to be weighed, and judged in each case on its own merits." Again in a case reported as P L D 1974 S C 224, a point of the nature which requires resolution in this case was required to be resolved. It was observed by the learned Judge:- "We have also carefully examined tine order sheets filed by the learned counsel for the State but are unable to agree with him that the conduct of the defence has been enqually reprehensible in this case. By fat the majority of the adournments are not due to any fault of the defence. The responsibility for them lies either on the prosecution or the Court, which, we regret to say, has displayed a degree of laxity that can only be described as deplorable. We have not been able to, resist the impression that it appeared ever willing to accept a request for adjournment. It is also a matter of great surprise to us that the High Court should have taken such lenient view of the flagrant disregard of its directive; by a subordinate Court. We cannot help feeling that perhaps the lenient attitude of the High Court itself encouraged the subordinate Court and prosecution in this case to drag on the proceedings in such a leisurely fashion for over three years now. We cannot allow such a state of affairs to continue and, therefore, we have come to the conclusion that, if ever there was a case, the present is one in which the delay has clearly amounted to an abuse of the processes of law and this entitles the appellants to be enlarged on bail, particularly, since the prosecution evidence has now been concluded and no question of tampering with the evidence can possibly now arise." On the basis of the above-cited cases it can be said- (i) that the prosecution cannot be allowed to enlist the will of the Court on its side in prolonging the agony of an accused person which is inevitably caused by his protracted detention without trial and delay in the prosecution due to this tactics furnishes a good ground for delay even in murder cases; (ii) that an accused who is not contributory towards the delay, may be allowed bail if delay is caused due to the fault of the Court or pro secution; (iii) that the High Court should always see that the orders passed by it are complied with. Whether the law is correctly enunciated and the facts of the present case attract the law enunciated in the above cases, is a question of vital importance and requires an authoritative pronouncement. The learned counsel for the respondents, Ch. Muhammad Tai, has mainly based his arguments on the basis of 1968 S C M R 683, wherein it has been observed that inordinate delay in the disposal of a criminal case, is not in itself a ground for granting bail to person accused of having committed offences punishable with death or transportation for life, and as the peti tioners-accused are also charged for an offence under section 458, A. P. C., which provides 14 years R. I., delay per se, is not sufficient to enlarge the petitioners accused on bail. Prima facie the facts of the present case are distinguishable and have much similarity with the facts of the case reported as P L D 1974 S C

224. However, I refrain to say anything at the present moment as to whether delay per se in the circumstances of the case provides justifiable ground for releasing the petitioners accused on bail. This question shall be dealt with at the conclusion of the appeal. However, in my view, the points stated above being important, merit consideration. Leave to appeal is, therefore, granted to consider whether in the circumstances of the case, the learned Single Judge of the High Court has exercised the discretion rightly in refusing the bail to the petitioners-accused? A separate application has also been moved by the petitioners accused for their release on interim bail. Whether circumstances and the facts justify a permanent bail for the petitioners is a question of vital importance, which will be decided at the conclusion of the appeal. However, bail cannot be refused as a punishment and even in murder cases, bail can be allowed in view of the given circumstances of a case. Here, in this case, if the petitioners accused succeed in the long run in securing bail, their detention during this period cannot be remedied and if the bail is refused naturally they will again be sent to the custody. In these circumstances, I am of the view that if ever there was a case, the present is one in which bail should be allowed to the petitioners during the pendency of the appeal. The petitioners, therefore, shall be released on bail on their executing a bail and personal bonds in the amount of Rs. 15,000 each to the satisfaction of any Magistrate Ist Class, Rawalakot. The bail bond of each of the petitioners shall be executed by three sureties who will be individually and collectively responsible to make the payment of the bail bonds in the event the petitioners-accused absented themselves. After the execution of the bonds, the petitioners accused shall be set at liberty if not wanted in any other case. The file, after its completion in the registry, shall be placed before the Court. Petition allowed.