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Criminal Miscellaneous Petition No. 62 of 1968 In Criminal Petition for Special Leave to Appeal No. 194 of 1968, decided on 12th July 1968.

(a) Criminal Procedure Code (V of 1898), S. 497‑Bail in non bailable offence‑Delay in prosecution of case amounting to abuse of process of law ‑A valid ground for bailing out accused Delay in prosecution of case as a ground for bail, however, to be weighed and judged, in each case on its own merits.

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 circumstances 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 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.

Where, therefore, some adjournments in the trial of a criminal case were caused by unavoidable circumstances and some occasioned by absence of Presiding Officer from the Court, it was held, that the Court could not be blamed for indifference or inactivity in proceeding with the case and the High Court was not justified in granting bail to accused on ground of delay in such circumstances.

(b) Appeal to Supreme Court‑Criminal appeal against order of High Court granting bail to accused in murder case on ground of delay in prosecution‑Supreme Court, finding grant of bail prima facie not justified, admitting appeal for hearing and as a corollary issuing non‑bailable warrants for arrest of accused filing petition before Supreme Court praying that order of arrest be suspended contending that else that order would virtually seal the result of appeal‑Contention, held, misconceived Supreme Court at ultimate hearing might hold bail by High Court to be justified and restore same.

(c) Bail‑Cancellation of‑Notice should always be sent to accused well in advance of date of hearing‑‑ Criminal Procedure Code (V of 1898), S. 497.

Mian Mahmood Ali Qasuri for Petitioner.

Raja Said Akbar, Advocate‑General for the State.

This Petition seeks suspension of an order passed by a Bench of this Court on the 27th of June 1968, by which while granting leave to appeal in Petitions Nos. 194/68 and 207/68, filed by the complainant Riasat Ali and the State respectively‑both directed against the order of bail granted to the petitioner by a learned Single Judge of the High Court of West Pakistan, Lahore, it was ordered that non‑bailable warrants should immediately issue against the petitioner‑Ghulam Muhammad, returnable to the District Magistrate, Sahiwal.

The ground on which bail was granted by the High Court to the petitioner namely that the learned Inquiry Magistrate was sitting over the proceedings in the case for the last 6 months without having examined a single witness and the case was being adjourned on every occasion causing unnecessary harassment to the petitioner, was found to be factually incorrect apart from its being not one of the grounds on which the petition for bail was based.

The case relates to the murder of two persons‑Jhanda and Muhammad Shafi, by causing fire‑arm injuries to them in broad day‑light, for which the charge was laid against 10 persons including the petitioner, one of whom is still absconding. The occurrence took place on the 19th of November 1967. The petitioner and 6 other accused persons were arrested on the 25th of November 1967. Two of the accused persons namely Rahmat Ali and Mahboob Ilahi could not be arrested before the 18th December 1967. Proceedings under section 88, Cr. P. C., were taken against Muhammad Yar, the accused who is still at large. An incomplete challan was put in Court on the 17th of December 1967 followed by a complete challan on the 2nd of March 1968 which was subsequently amended by the transposition of one of the accused persons namely Zaffar Sawar as a suspect in column No. 2 instead of being named in column No. 4, as according to the report of the Crimes Branch, he was stated to be innocent.

It appears that some adjournments were caused in the case for the non‑production of the accused persons in the Court on some hearings due to an epidemic having spread in the jail where they were lodged. One or two adjournments were caused in the case for summoning the constable who had tried to trace Yaroo, the absconding accused in order to proceed against him under section 5 1 2 of the Cr. P. C. It seems that one or two more adjournments were occasioned because of the absence of the Presiding Officer from the Court for one reason or another. It would thus appear that the observation of the learned Single Judge that the Committing Court was sitting over the case without having recorded any evidence, was not grounded on facts. In the circumstances it would be unjustified to put any blame on the Committing Court for indifference or inactivity in proceeding with the case. 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 circumstances 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 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 represented acceptance of the fact that a mistake had been made in appointing him to a post for the requirements of which he did not possess the necessary ability, and the conclusion to that effect was not reached hastily or on any ulterior ground, but after actual trial and issue of a notice to the appellant that he was under special report for the purpose of judging whether he could prove his adequacy for the post. Therefore, nothing in the nature of a punishment was involved in his removal. He had sufficient notice of the fact that he was liable to lose his appointment on the ground of his inadequacy, and had been informed of the method in which he could prove that he was possessed of the necessary ability for the higher post to which he had been appointed. Absence of any victimization or personal prejudice is apparent from the fact that he was restored to his earlier appointment, which was in Class II service, and that he has been retained in that service for the past seven years, and eventually has been promoted to Class I. The treatment of the appellant by the West Pakistan Government, has throughout been bona fide, and in these circumstances, the application to him at an early stage of his service in the new post of the condition of termination by notice appears to have been thoroughly proper. His writ petition calling in question the legality of such termination was rightly rejected."

Capt. Muhammad Azhar v. Commissioner of Karachi P L D 1966 S C 253; Abdul Majid Sheikh v. Mushafe ,4hmed P L D 1965 S C 208 and Ghulam Sarwar v. Pakistan P L D 1962 S C 142 distinguished.

Shamim Ahmad Mirza, Advocate Supreme Court instructed by Tanvir Ahmad, Attorney for Appellant.

Raja Said Akbar Khan, Advocate‑General West Pakistan (R. S. Sidhwa, Advocate Supreme Court with him) instructed by Ijaz Ali, Attorney for Respondent.

Date of hearing : 1st December 1967.

JUDGMENT

CORNELIUS, C. J.‑

The appellant Muhammad Mumtaz Khan was holding a post in Class II Service of the Province of West Pakistan as Development Officer in the Industries Directorate when after a successful appearance before the Provincial Public Service Commission, he was appointed in a temporary capacity to a Class I post as Progress Officer in the Planning and Development Department, on specified terms of which the following are relevant :‑

(1) the post was a. temporary post in the Junior Class I scale ;

(2) although temporary, the post was likely to continue indefinitely ;

(3) the appointee was liable to serve anywhere in Pakistan ;

(4) the appointment was liable to be terminated at any time on a month's notice on either

side; and

(5) the appointee in respect of his general conditions of service would be governed by the old Civil Service Rules (Punjab) as amended by any rules or orders issued by the West Pakistan Government until such time as a fresh set of West Pakistan Civil Service Rules should be promulgated.

On the 22nd October 1959, he received a letter written on behalf of the Commissioner (Development) and Secretary to the Government of Pakistan, Planning and Development Department saying that he had failed to give a satisfactory account of himself "during the brief tenure of your office as Progress Officer (General)" and he was therefore being placed on "special report for a period of three months during which you will have an opportunity to improve your work". If his work continued to be unsatisfactory after the expiry of the period of three months, action would be taken to terminate his service by notice as specified in his conditions of appointment. On the 4th February 1960, an order was issued by the Commissioner (Development) and Secretary to the Government which said that the Government had decided to terminate the appellants service by notice and he was accordingly given a month's notice. At the expiry of this period of a month, the appellant was taken back by the Industries Department in his previous post, and it appears that he has been in continuous employment in that Department ever since. It was stated at the hearing that recently he had been promoted to Class I Service.

The appellant made a representation to the Commissioner (Development) against the notice he had received, on the 16^th February 1960, which was rejected by that officer on the 29th February. He made a representation thereafter to the Governor asking for reinstatement in his post of Progress Officer, which was rejected on the 10th September 1961. Thereafter, he filed an appeal to the Governor to which it was stated he received no reply. He then moved a writ petition in the High Court in which reference was made to a further notice of termination of his services, which he received on the 16th August 1961 in the following terms :‑

"Please take notice that in accordance with the terms of your service . . . . . your services will stand terminated after one month from the date of receipt of this one month's notice.

By order of the Governor West Pakistan."

The earlier notice while it contained a reference to the relevant term in the appellant's conditions of service and fixed the period of notice at one month, did not expressly say that it was being issued by order of the Governor of ‑West Pakistan. In the Provincial Government's written statement in reply to the writ petition, it was explained that the second notice was issued because of certain doubts regarding the legality of the first notice and accordingly the case was submitted directly to the Governor of West Pakistan, who issued an order of termination by notice and thereafter the second notice was issued. The Provincial Government further stated that although it "could be argued that technically the termination of the petitioner's services became effective from the 16th September 1961"s nevertheless it was not possible to reinstate him as Progress Officer in the relevant Department "for the period in question." It is of some importance to note that in his writ petition, it was nowhere suggested that the termination of service was due to some prejudice against him or that it was an act of victimization or that the real motive for the Government action had not been correctly stated. In the arguments before us learned counsel for the appellant tried to say that the termi nation was due to prejudice against the appellant entertained by an American Adviser in the Industries Department, who had sat with the Public Service Commission at the viva voce) examination which had led to his being selected despite the opposition of the said adviser. We find that no mention of this was made by the appellant either in his writ petition, or in his petition to this Court for Special Leave to Appeal against) the judgment of the High Court dismissing the writ petition. We therefore decline to examine the case from this aspect.

Special Leave to Appeal was granted to the petitioner to consider the contention that because his employment was in a post, which though temporary was to continue for an indefinite period, he could not be regarded as a temporary officer and his services could therefore not be terminated by notice.

Mr. Shamim Ahmad Mirza has argued the case on behalf of the appellant, and has attempted to rely on certain earlier decisions in service cases by this Court, in particular the cases of Capt. Muhammad Azhar (P L D 1966 S C 253) of Abdul Majld (P L D 1965 S C 208) and of Ghulam Sarwar (3). The case of Ghulam Sarwar was entirely different from the case for Ghulam Sarwar held a permanent post in a permanent service and although he had entered the service on terms, which enabled termination thereon by one month's notice, it was held that his removal by notice under that contract required compliance with the provisions of section 240 (P L D 1962 S C 142) of the Government of India Act, 1935. There was also an element of victimization in that case by superior Officers to whom Ghulam Sarwar had given offence. The case of Abdul Majid was one of a civilian Gazetted Officer working in the Ministry of Defence, from a date in 1954 until on the 29th August 1953, when he was given 14 days' notice of discharge. It was found in that case that the post which he held at the termination of his service was sanctioned on a permanent basis and although his appointment thereto was expressly described as temporary, nevertheless it had been made clear from the outset that it was to be of indefinite duration. In these circumstances, it was held that the mere fact that his appoint ment to his last post was "until further orders" did not deprive him of the constitutional right to an opportunity to show cause against his removal. The civil servant in that case had successfully undergone more than one period of probation in the course of his service. There was also an element of prejudice on account of his having been involved in a dispute over a technical matter between himself and his immediate superior In his last post in the Pakistan Naval Dockyard. In the case of Capt. Muhammad Azhar, it was found that his dismissal from service had been ordered by an authority, which was not competent to remove him from service, and further that there had been no reference of his case to the Central Public Service Commission as his terms of service required.

In the present case, the appellant's tenure of the Class I post of Progress Officer clearly contained no element of permanency for the post itself was temporary and he had been appointed to it in a temporary capacity. His removal from that post was effected in an entirely straightforward manner, on the basis that his work showed that he was inadequate to the requirements of the post. He had been informed of this at an intermediate stage, and given an opportunity to show better work over a period of three months. On account of his failure to do better, his services were terminated in the Class I appointment, and he was restored to his original Class II appointment for which at the state his efficiency had then reached, he appears to have been suitable. His removal was in no since a punishment. It represented acceptance of the fact that a mistake bad been made in appointing him to a post for the requirements of which he did not possess the necessary ability, and the conclusion to that effect was not reached hastily or on any ulterior ground, but after actual trial and issue of a notice to the appellant that he was under special report for the purpose of judging whether he could prove his adequacy for the post. Therefore, nothing in the nature of a punishment was involved in his removal. He had sufficient notice of the fact that he was liable to lose his appointment on the ground of his inadequacy, and had been informed of the method in which he could prove that he was possessed of the necessary ability for the higher post to which he had been appointed. Absence of any victimization or personal prejudice is apparent from the fact that he was restored to his earlier appointment, which was in Class II service, and that he has been retained in that service for the past seven years, and eventually has been promoted to Class I. The treatment of the appellant by the West Pakistan Government has throughout been bona fide, and in these circumstances, the application to him at an early stage of his service in the new post of the condition of termination by notice appears to us to have been thoroughly proper. His writ petition calling in question the legality of such termination was rightly rejected.

We find it necessary to add that in view of the Provincial Government's own admission that its original notice of the 4th February 1960 was of doubtful legality and the action that was taken to regularise the matter by issue of a fresh notice terminating the appellant with effect from the 16th September 1961, the appellant may rightly claim the monetary benefits of the notional retention in the Class I post between the 4th March 1960 and the 16th September 1961. We must not however be understood to be holding that the original notice was in law ineffective, or that in the circumstances of this case, it was necessary for the appellant's case to be placed before the Governor personally for an order of termination of his service. We say so because we find that the earlier notice of termination was issued in the name of the Department, and was signed by the Secretary to Government in the relevant Department, and it could be argued in terms of Article 74(2) of the 1956 Constitution that the action of the Government as represented by that notice could not be called in question since it was authenticated by the signature of a Secretary to the Governor. That point has however not been examined in the High Court and our view expressed above that the appellant is entitled to certain benefits between the period 4th March 1960 and the 16th September 1961 is based solely on the admission made by the Provincial Government in this particular case.

We accordingly dismiss the appeal, but in the circumstances made no order as to costs.

K. B. A. Appeal dismissed.

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