2004 P Cr (PLP)

"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." A reference is also invited to a case of Barkhurdar v. Liaquat Ali and 2 others PLD 1977 SC 434, which was decided on 22‑2‑1977, in which the Honourable Supreme Court cancelled the bail of the accused and made the following observations as to the effect of delay:‑‑ "Having heard the learned counsel for the parties we fell 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 not 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 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 jail owning to a large number of under‑trials has created an unparalleled situation. While on the one hand under‑trial prisoners are detained for two to three years and even more in 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 same." Because of such decisions and different period of delay, for the release of the accused persons, the law was codified. First third proviso was added to section 497, Cr.P.C. making the delay as one of the grounds for the grant of bail to an accused person fixing a uniform period for release of ail accused persons falling within the ambit of said provision. Subsequent fourth proviso was added under which certain conditions for application of 3rd proviso were added. Then third and fourth provisos were omitted vide Ordinance No. LIV of 2001, but again it was inserted by Act, XIX of 1994, lastly the 3rd and 4th provisos to section 497, Cr.P.C. have been omitted vide Ordinance No.LIV of 2001 from 11‑10‑2001. As such after the Ordinance No.LIV of 2001, the ground of delay in the disposal of cases is no more available to and accused person as a statutory right. From the above resume, it is clear that the first, intention of the Legislature was that the accused person shall be released on bail on the ground of delay, by making it a valid and legal ground for grant of bail, but subsequently, the Legislature changed their intention by declaring that the accused persons shall not be granted bail on the ground of delay, as such the statutory right of bail on the ground of delay in the disposal of cases has been taken away or withdrawn. Thus, after the omission of 3rd and 4th provisos to section 497, Cr.P.C. the accused person cannot claim bail as a statutory right on the ground of delay in the disposal of case as the said ground is no more available to them. It is well‑settled principle of law that the delay per se is not a sufficient ground for grant of bail, but if it causes abuse of the process of law then only it can be considered as a ground for the grant of bail as held by the Supreme Court of Pakistan in various authorities decided before the insertion of 3rd proviso to section 497, Cr.P.C. Keeping in view the earlier decisions of the Honourable Supreme Court of Pakistan on the subject, it is to be seen whether in the present case delay in disposal of the case has caused an abuse of the process of law or not. In the present case, some of the accused persons are absconders as shown in the challan and subsequently one of the accused was joined in the case and process in the shape of N.B.Ws. for the arrest of the accused persons were issued so that the proclamation can be issued and proceedings under section 512, Cr.P.C. could be ordered and the case can be fixed for trial. The said process was completed on 23‑7‑2001. It is also pointed out that the accused is involved in a case which involves capital punishment, the same cannot be proceeded with in the absence of his Advocate. The case diary shows that for the first time, the Advocate for the applicant appeared on 3‑10‑2001 when he moved an application for bail. Before that the diaries are silent with regard to the engagement of an Advocate by the applicant. The applicant was required to engage an Advocate, so that his case could have proceeded. The Advocate could have easily pointed out to the Court that the case of the absconding accused might be bifurcated from the case of present applicant, so that the case of the present applicant could be fixed for early disposal. It is also one of the duty of the Court to see that the case should be proceeded with at an early date for that purpose the case of the accused persons who are not attending the Court can be bifurcated under para. I of Notification No.6 R.H.D. No.2334, H/40, dated 5‑7‑1947 mentioned in rule 7, Chapter VII of the Federal Capital of Sindh Courts Criminal Circulars, under which case of accused persons who are not apprehended can be separated. The above‑mentioned para. reads as under:‑‑ "

1. Where more than one accused is involved, the commencement of proceedings should not be held up until all the wanted persons are apprehended, but the case should be proceeded with as soon as the principal accused is/are secured, excepting exceptional circumstances with the special permission of the District Magistrate concerned." However, it is pointed out that the delay in disposal of the case is caused by various reasons involving as follows:‑‑ (1) Courts: Such as large number of pendency of cases, less number of judicial officers, inadequate infrastructures, working conditions, staff etc. (2) Accused: Such as their abscondence, non‑engagement of Advocates, pressure to the complainant party for compromise etc. arrangement with jail personnel for not producing them in Court, so that period of statutory period expires and case should be delayed etc. (3) Advocates: Such as taking large number of cases, not preparing the cases for various reasons, engagement in other cases or superior Courts etc. (4) Prosecution: Such as inadequate number of prosecutors, their staff, no liaison between them and police, non‑cooperative of police with them etc. (5) Police: Such as non‑execution of process of the Court, non- cooperation with Courts, taking no interest after submission of challans in Courts, no follow up of cases, non‑attendance in Courts etc. (6) Jail authorities: Such as, less numbers of vans for transporting the prisoners, non‑availability of police personnel for transporting the prisoners, transfer of prisoners from one jail to another, non‑production of prisoners in Courts for various reasons, genuine and artificial etc. (7) Government: Such as non‑sanctioning of sufficient No. of post of judicial officers, insufficient budget to the Courts etc. In the present scenario, all these and other various factors are contributing factors individually and collectively and playing dominant role towards the delay in the disposal of cases, therefore, the same are to be taken into consideration while examining the point of delay in disposal of the case, as an abuse of the process of the law. It will be seen that after abolition of committal proceedings, 2 or 3 years period in commencement of proceedings is inevitable, as observed by the Honourable Supreme Court of Pakistan in the case of Burkhurdar (supra). After expiry of the said period, the period for delay as an abuse of the process of law will start. But it depends upon the facts and circumstances of each case, as such no hard and fast rule can be laid known in this respect. After considering the material available on the record, circumstances surrounding the present case, attitude of the police towards Courts and several other above mentioned factors, I am of the considered view that the delay in the disposal of the case, in the circumstances of the present case is not an abuse of process of the law, as such, the applicant is not entitled for the concession of bail on the ground of delay. The authorities quoted by the learned Advocate for the applicant are not applicable to the circumstances of the present case, as the facts and circumstances of said cases are quite different from the present case. In view of above position, the application merits no consideration, therefore, the same is dismissed. H.B.T./H‑4/K Application dismissed.