P L D 1966 (W (PLP)

MUHAMMAD AFZ.AL CHEEMA, J.‑The petitioners were challaned for having murdered one Mirza Qadir Beg on the 19th of November 1963, at about 4‑00 a. m. in village Chak Mahni in Multan District. On the 9th of January 1964, the District Magistrate, Multan, recommended to the Commissioner that the case be referred for trial to a Tribunal under the West Pakistan Criminal Law (Amendment) Act, 1963, and it was quite some time after this, i.e., towards the end of 1964, that the case was withdrawn from the trial Magistrate for being referred to a Tribunal. Both, the District Magistrate's recommendation as well as the Commissioner's order of reference were challenged in Writ Petition No. 1200 of 1964, which was accepted by a Division Bench of this Court vide its order dated the 18th of December 1964, quashing the order of reference. Both the parties approached the Supreme Court for Special Leave to Appeal which was granted, and commitment proceedings were also stayed by their Lordships pending disposal of the appeal vide order dated the 19th of May 1965.

2. Having unsuccessfully applied for bail to the Additional Sessions Judge, Multan, the petitioners have now approached this Court.

3. The case was argued before us in the first instance during vacation on the 1st of September 1965, but was adjourned for further consideration of the question as to whether, the delay owing to pendency of appeal in the Supreme Court and the consequent prospect of the petitioners remaining in the lock up for quite sometime more constituted per se sufficient ground for the grant of bail.

4. We have had the benefit of the assistance of two eminent Advocates of this Court besides the learned counsel for the State and the arguments were heard quite at length.

5. It would be relevant at the outset to refer to an earlier order dated the 19th of October 1964, passed by a Division Bench of this Court in which the merits of the case including the question of delay were thoroughly examined, but their Lordships declined to grant bail and dismissed the petition. However, in order to obviate further delay, an actual date was fixed in the main petition which was accepted. As regards the question of delay, it was observed by their Lordships as follows: --‑ "Since the 8th of September 1964, the proceedings have been stayed under the orders of this Court, the delay cannot be used for the benefit of the petitioners because the stay of proceedings had been ordered at their request."

6. The learned counsel for the petitioners tried to argue that in matters of bail this Court possessed unfettered discretion under section 498, Cr. P. C. which is not controlled by the limitations of section 497, Cr. P. C. Reference was particularly made in this regard to Emperor v. Kishan Gopal (A I R 1933 Lah: 925). In this case bail was allowed to the accused persons simultaneously with the framing of charges under sections 302/109 and 307/109, P. P. C. The High Court rejected the revision petition filed by the Crown on the ground that section 498, Cr. P. C. gave an unfettered discretion to the High Court or the Sessions Court to release the accused persons on bail. Several English authorities were also cited in support of the contention that delay has been considered by the Courts as a relevant factor for allowing bail. While attacking the usual hesitancy of the Courts in allowing bail in murder cases, learned counsel particularly stressed the following observations of their Lordships of the Supreme Court in Khalid Saigol v. The State (P L D 1962 S C 495). "We may state straightaway that where a Court is called upon to exercise its judicial descretion, it will not be discharging its functions properly if it were to proceed upon any, a priori assumption that in all cases where an offence punishable with death or transportation for life is alleged, bail must as a matter of course be refused, nor can there be any rule of practice upon the basis of which such a discretion can be judicially exercised, for, rarely will there be two cases in which the facts are alike. To act upon a rule of practice may, therefore, well constitute an arbitrary exercise of a discretionary power for, the exercise of a discretion vested by law in a Court must be upon sound judicial principles after taking into account the facts and circumstances of each case. The nature of the accusation and the heinousness of the crime alleged are, no doubt, very relevant circumstances to be taken into consideration, but by themselves they are not the only circumstances, as we, have endeavored to point out, even under sections 496 and

497. What further considerations should be taken into account by the Court in deciding this question must necessarily depend upon the facts and circumstances of each case, and no hard and fast rule can be laid down,"

7. On the other hand, Mr. Jamil Hussain Rizvi, the learned counsel for the complainants also referred us to a number of authorities in support of his contention that "The High Court should not grant bail in cases where a person is charged with offences punishable with death, or transportation for life except for exceptional and very special reasons." Reference was made inter alia to Maung Ba Maung v. Emperor (A I R 1930 Rang. 335). It was, however, conceded by the learned counsel for the complainant that this Court has the discretion to allow bail and no hard or fast rules A of universal application for allowing or refusing the same could be laid down as it would depend on the circumstances of each case. However, in the course of his arguments it was contended by Mr. Jamil Hussain Rizvi that since the Supreme Court was already seized of the matter and no special leave was necessary in this regard, it would be in the fitness of things to leave the question of bail as well to their Lordships of the Supreme Court. Reference was made in this regard to A I R 1938 Lah. 697.

8. In so far as the merits are concerned, as stated earlier, a Division Bench of this Court had already applied its mind to this aspect of the matter but did not consider it proper to allow bail. Moreover the case was adjourned by us to consider the aspect of delay alone. We would not, therefore, re‑open the case on merits and confine ourselves only to the question of delay.

9. The question can be considered from two different aspects; firstly, whether delay in the conclusion of trial would be a relevant factor in considering the question of bail in a murder case, and secondly, whether delay per se would be a sufficient ground for the grant of bail in a murder case. In so far as the first proposition is concerned, there is hardly any room for difference of opinion as delay in all cases including those of murder would be a relevant consideration for allowing bail. As stated earlier, the question of delay was also considered in the instant case by a Division Bench of this Court and their Lordships gave the reason why delay was not considered as a circumstance in favour of the petitioners who themselves were, to some extent, responsible for it. It is thus clear that the question of delay has always been taken into account as a relevant consideration. In Emperor v. Wahidino and others (13 Cr. L J 845), the Sessions Judge granted bail in a case under section 366, P. P. C. on the following ground :‑ "Besides the considerations of the cases cited by Mr. Lobo will not apply to the present case when the Sessions case has been adjourned sine die at the request of the prosecution and when it is not known when it will be eventually taken up by this Court and when there is an intense desire on the part of the prosecution to lock up the applicants as under‑trial prisoners for an indefinite period." A revision was filed by the Crown. Not agreeing with this finding of fact and shifting the responsibility of the‑delay of the trial on the accused, his Lordship observed :‑ "I think it would have a very bad effect, if the view is adopted that, because an accused person delays the trial of the case against him, therefore, there is reason for him to be released on bail."

10. The question of delay was also very much involved in another important authority cited as Gushtasab Khan v. The Crown (P L D 1956 F C 117). This was a case under section 307, P. P. C. in which the trial could not make any headway for nearly four years after the occurrence. The bail application filed by the accused was allowed by Mr. Justice Lari of the Sindh Chief Court, but bail was cancelled after a suo motu notice by Mr. Justice Muhammad Bakhsh Memon. The accused, Gushtasab Khan, moved a revision on the High Court side of the same Court but the learned Chief Judge declined to release him on bail. Leave to appeal against the latter order was granted and the matter came up finally before their Lordships of the Federal Court. The present Chief Justice of Pakistan, who delivered the judgment, while dismissing the appeal, observed as follows :‑ "At the same time, we cannot fail to draw attention forcibly to the inordinate delay extending over four years which has occurred in the commencement of the preliminary processes necessary for bringing the appellant to trial in a competent Court. It might be thought that this delay by itself was a sufficient powerful element weighing in favour of the grant of bail. It would not, in our opinion, be improper to take into account, on the one side, the hesitation of the prosecuting authorities in bringing Gushtasab Khan to justice, and, on the other side, the plain fact that he was being subjected to a form of punishment, albeit mild, in advance of being found guilty. These matters, however, are for the Sessions Court or the inquiring Magistrate to consider, if and when a further application for bail is made by the appellant."

11. From the above discussion, it appears that delay is not only a relevant consideration for allowing bail, but may per se be a good ground in certain circumstances. But the fact cannot be lost sight of that this was not a murder case. Considering all the pros and cons, we are of the view that no inflexible rule of universal application can be laid down regardless of the facts of each case. Of course in murder cases as well, delay inter alia would be a relevant consideration, but it would be very rarely that it could be considered per se a sufficient ground though such a situation cannot be altogether excluded. Then again the amount of delay, its causes and responsibility would also be very relevant considerations. It may be observed that no direct authority, in which solely owing to delay in the trial the accused in a murder case might have been released on bail, was cited before us; nor could we ourselves lay our hands on any such case. However, we have no hesitation in saying, and in fact while doing so we only reiterate what a Division Bench of this Court has said earlier in its order dated the 19th of October 1961 that the petitioners themselves had also contributed to some extent to the delay inevitably caused in the conclusion of the trial though they were not solely responsible for it. In the circumstances, we are not inclined to grant bail to the petitioners and accordingly dismiss the petition:

12. Before concluding it may be observed that the mere fact that the Supreme Court is already seized of the matter would not take the case out of the jurisdiction of this Court, nor could it be deemed in any manner improper that the matter should be considered by this Court in the first instance. On the contrary it appears to be only in conformity with the law and the procedure that before it goes to the Supreme Court the case must be considered by this Court in the ordinary course. The D Supreme Court's seizen of a collateral issue does not in our opinion warrant departure from the normal procedure in the treatment and disposal of bail matters. A I R 1938 Lah. 691 the authority cited by Mr. Jamil Hussain Rizvi is ‑ quite distinguishable and not applicable to the facts of the instant case. In that case after a criminal appeal had been decided by the High Court and leave to appeal to the Privy Council had been granted by the Judicial Committee it was at that stage that an application for bail was moved before the High Court which was refused on the ground that no direction had been issued in this regard by the Privy Council. On the contrary in this case it is not the appeal in the main murder case which is before their Lordships of the Supreme Court but only a collateral issue and as such the ordinary jurisdiction of this Court is not affected. K. B. A.