1877 P (PLP)

2. These applications were admitted to consider whether the delay, which had already taken in the trial of an accused coupled with the prospective delay in the completion of the same would by itself entitle him to be released on bail without looking into the merits of the case. A notice was issued to the Advocate General to nominate some Law Officer to assist this Court to resolve this issue as this would affect a large number of murder cases which are pending before the Sessions Court, for trial in view of enforce ment of Law Reforms Ordinance.

3. I have heard the learned counsel appearing on behalf of the petitioners in all the three petitions and the Assistant Advocate-General assisted by Mr. S. M. Hamid Ali, Advocate, on behalf of the State. Learned counsel in support of this proposition as formulated above, has placed reliance on Muhammad Sadiq and another v. The State (1974 P Cr. L J Note 138 at p. 86), Aurangzeb etc. v. The State (1974 P Cr: L J Note 156 at 97), Muhammad Rafiq v. The State (P L J 1975 Cr. C (Lah.) 359). Wakeel Hassan v. The State (1976 S C M R 159) and an unreported judgment of Mr. Justice Gul Muhammad Khan in Criminal Misc. No. 1719/13-76 and another unreported judgment of their Lordships of the Supreme Court in Insar Hussain v. The State (P. S. L. A. No. 394 of 1976) and has submitted that in all the above citations, the delay has been held a valid ground for release of an accused person on bail without looking into the merits of the case. It has been contended that when law itself has made provisions through Law Reforms Ordinance about a person who has been convicted (sic) on a capital charge he, will be automatically released on bail if his case is not decided within a period of two years 'of his conviction, (sic) therefore, it would be highly unjust to keep a person behind the bars for indefinite period whose guilt is yet to be established regarding the capital offence with which he is charged by a Court of Law.

4. On the other hand, learned Assistant Advocate-General while repelling these contentions, has submitted that the history of the case law if gone through deeply regarding this issue, would reveal that delay by itself was never considered good ground for release of a person on bail who stood charged with a capital offence and it was only considered as a valid ground for release of such person on bail if there were other circumstance available to show that his confinement was nothing but an abuse of process of Court and the prosecution was intentionally withholding evidence against him and were protracting trial in a most abnoxious manner. Reliance, has been placed on Muhammad Nawaz v. State (1968 S C M R 683), Riasat Ali v. Ghulam Muhammad (P L D 1968 S C 353), Manzoor Khan v. Kamir (1972 S C .M R 207), Muhammad Khan v. Ataullah and others (1974 S C M R 165.) Abrar Muhammad and others v. The State (P L D 197,4 S C 224) and Criminal Misc. No. 4152/B-76, decided by my Lord, the-Chief Justice on 19-10- 1976.

5. I have given my anxious thought to the contentions raised by the learned counsel for the petitioners in all the applications and the State. In the case of Muhammad Siddiq the learned Judge of this Court was influenced to release the accused on bail on the ground that the prosecution had intentionally withheld the evidence before the Inquiry Court and thus was responsible in keeping the accused behind the bars by adopting dilator-y tactics. In Aurangzeb's case the same learned Judge released, an accused person charged with capital offence, on bail when it was in the jail for the last 29 months and record of the case disclosed that there was no prospect of early disposal of commitment proceedings. In the case of Muhammad Rafiq the same learned Judge once again was pleased to allow bail to an accused person charged with capital offence that three of the other co-accused in that case were already enlarged on bail and the record of the case disclosed that throughout the inquiry proceedings, the prosecution was responsible for not producing the witnesses in Court (except on one occasion) and also failed to produce the accused from the jail on ten hearings. It was also found by the learned Judge that to secure the attendance, of the witnesses, no instructions were issued to the P. D. S. P. in that mater. This will show that crux of the above three citations is that the delay was a good ground for releasing an accused person on bail only when it was established to the satisfaction of the Court that the prosecution was responsible for 'applying dilatory tactics in Withholding the prosecution evidence to the detriment of the under-trials. In. Wakeel Huassain's case bail was granted by then' Lordships of the Supreme Court not solely on the ground of delay but only when it' was found a that it was a case in which free fight between the parties had apparently taken place and a fatal shot was said to have been fired by an absconding accused. Their Lordships were of the view that the exact damage caused by the shot attributed to the petitioner in that case was not ascertainable. Furthermore the learned Judges were influenced by the factum of abscondence of one of the accused persons along with the existence of two counter' erases and a private complaint which were likely to delay the trial. While going with respect through the case of Maqsood v. Ali Muhammad (1971 S C M 657), I find that it relates to principles laid down with regard to provisions of section 497 (1), Cr. P. C., which their Lordships permitted to be applied under section 426,Cr. P. C. in matters of grant of bail. The came of Insar Hussain of course lays down, without any ambiguity that where no, trial has been concluded even after the lapse of three years, the accused person in that case was entitled tea bail irrespective of merits.

6. To resolve this issue, it would be beneficial to refer to Muhammad Nawaz v. State, which is the first case wherein inordinate delay was agitated for being considered as good Ground for releasing accused on bail who was charged with a capital offence. Their Lordships clearly held that mere fact that there had been inordinate delay in the disposal of a criminal case, was not by itself a ground for granting bail to the persons accused of having committed Offence punishable with death car imprisonment for life, under section 302/34 P. P. C. It wilt be useful to mention that delay in that case, amounted to five nears as the case stood registered on 12-I1-1963 and heir application was decided by the Supreme Court in 15th March, 1968. It was found by their Lordships that dilatory tactics were employed by the accused/petitioners themselves who had created obstruc tion by use of such methods in the completion of their trial. In Riasat Ali's case their Lordships of the Supreme Court while holding that delay in. the prosecution of case amounted to abuse of process of law, also held tat the same was however, to be weighed and judged in each case on its own merits. Mr. Justice Sajjad Ahmad Jan, in that case, held as under: -- 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 on 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 fling 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 broach case oft its own' merits. (Note Underlining is mine.) A similar view was taken in the case of Manzoor Khan by the same learned Judge. In Muhammad Khan s case in which leading judgment was contributed by my Lord, Mr. Justice Anwarul Haq, it was held as under:- "We agree that delay by itself would not justify the grant of boil. It would be necessary, as laid down in the case of Riasat Ali referred to by the learned counsel to examine the nature of the delay and the circumstances that have caused it. How, in the instant case it is possible that a different view could be taken oil its account but we are not inclined to interfere at this stage with the discretion exercised by the High Court as tie are informed that commitment proceedings are nearing completion and the evidence of only three formal witnesses remains to be recorded In. these circumstances it would be appropriate to await the mull of these proceedings. If the respondents are committed for trial, it shall be open to the learned Magistrate to consider the cancellation of their bail in accordance with law. In the instant case the: High Court had, released the accused on bail can the ground of delay and their Lordships of the Supreme Court did not choose to interfere by making the above observations. In Abrar Muhammad s case this point was further elucidated as under: -- It is true that the view of this Court had been that mere delay, by itself is trot 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 on reason either in principle or in law as to why it cannot be treated as a sufficient ground for the granting of bail . . . . . . In view of the law laid down from time to time as discussed above, I am of the considered opinion that it was never the intention of the superior Courts to release an accused person on bail who stood charged with capita offence on the ground of delay simplicitor. The Court dealing with such cases would also see whether any delay has been caused purposely on the part of the prosecution or the same has occurred due to circumstances beyond its control or due to legal impediments. In all these three applications, it' has not been shown anywhere that the prosecution in any manner behaved callously or maliciously to keep the accused behind the bars. Their cases have been dealt with in a normal manner and it was only due to Law Reform Ordinance that commitment proceedings stood terminated been and the cases were sent for trial before the Court of Session. If the State due to unavoidable circumstances has not been able to appoint Sessions Judges for the purpose of trial of such cases, no blame could be laid at the door of the Agents of the prosecution who have otherwise conducted the case with diligence and promptitude. The learned Assistant Advocate-General informed the Court that the Government is going to appoint Additional Sessions Judges in the province, in the near future and thus no further delay is likely to occur in the completion of the trial of the cases. He has also submitted that this was the reason which prevailed with my Lori, the Chi Justice of this Court, on 29-10-1976 what he was pleased to dismiss a similar petition in limine filed by one Lal Khan. The case of Insar Hussain is also not applicable to the cases of the present petitioners as in that cap their Lordships only allowed bail when three years had elapsed and the conclusion of the trial was still not in sight. , I will also like to make reference to the judgment of my learned brother Mr. Justice Gul Muhammad Khan in Criminal Misc. No. 1719/B-76 wherein his Lordship was pleased to grant bail on the ground of delay relying on an amendment in section 426, Cr. P. C wherein it has been laid down that a person convicted to life imprisonment would be entitled to be released on bail if his appeal would not stars decided within a period of two years of his conviction. With due respect, I would humbly disagree with his Lordship on the ground that the State is fully aware that with the strength of High Courts as it is in the country, would be a normal routine that such appeals which are always given priori to ordinary criminal cases, would stand positively decided within this lot span of time and if it happens otherwise, it would be considered something abnormal and the convict would of course be entitled to the concession of bail as provided by law, whereas in the cases of under-trials charged with capital offences, the statement has occurred due to an impediment of law which is likely to be removed in the near future. Thus to draw an analogy from amended section 426, Cr. P. C. for release on bail of an accused person charged with capital offences, would be a proposition fraught with dangers as thousands of criminals would be let loose on the society once again who will not hesitate to commit further crimes either against their prosecutors or the P. Ws. who are likely to depose against them.

7. The result of the above discussion is that I dismiss all the three applications as being without any force. Petitions dismissed.