Find a Lawyer

Criminal Appeal No. K‑6 of 1974, decided on 14th March 1974.

(On appeal from the order of the High Court of Sind & Baluchistan, Karachi, dated the 7th February 1974, in Criminal Bail Application No. 956 of 1973).

Criminal Procedure Code (V of 1898)‑

5. 498‑Bail in non‑bailable offence‑Inordinate delay in prosecu tion amounting to abuse of process of law‑Can be treated as sufficient ground for grant of bail‑Majority of adjournments in case not due to any fault of defence and prosecution dragging on for more than 5 years whilst accused denied bail‑Action of prosecution arid Courts, held, amounted to abuse of process of law.

It is true that the view of the Supreme Court has consistently boon 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 bt 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.

Riasat Ali v. Ghulam Mahammad P L D 1968 S C 353 ; Manzoor v. The State P L D 1972 S C 81 ; Manzoor Khan v. Kamir 1972 S C M R 207 ; Muhamad Sadiq v. Muhammad Shaf 1973 S C M R 212 and Bashir Ahmad v. The State P L D 1973 Lah. 486 ref.

Ijaz Hussain Batalvi, Advocate Supreme Court instructed by M. A. Qureshl, Advocate‑on‑Record for Appellant.

Usman Ghani, Assistant Advocate‑General Sind, Karachi for the State.

Date of hearing : 14th March 1974.

' JUDGMENT

HAMOODUR RAHMAN, C. J.‑This appeal, by special leave, is directed against an order of a learned Single Judge of the Sind & Baluchistan High Court refusing to enlarge the fourteen appellants herein on bail.

The fourteen appellants herein were arrested between the 25th of May 1968 and the 31st of May 1968, on the basis of a F. I. R. filed on the 24th of May 1968 alleging that at about 10‑30 p.m. of that day some 15 to 20 unknown persons had broken into the house of the complainant where two other unknown persons had taken shelter. Later it was found that one of the said two persons was lying near the gate of quarter No. 35 in an injured condition and the second man was lying seriously wounded some 200. steps away at Chowrangi.

The complainant neither knew the names of the wounded persons nor of the alleged rioters. However, on the basis of investigations made, the appellants were taken into custody, and an interim challan was put in on the 11th of June 1968. Thereafter, a complete challan was put in on the 24th of June 1968.

Commitment proceedings took nearly two years and a commitment order was ultimately made on the 16th of May 1970.

Ever since their arrest, the appellants had been making attempts to obtain bail. The appellant No. 1 was released on bail by the learned Sessions Judge, Karachi, on 15‑10‑1969, and an application for the cancellation of the said bail was dismissed by the High Court of West Pakistan, Karachi Seat, on the 27th of November 1969. A petition for special leave to appeal from this order also failed before this Court.

After commitment, on the application of the father of one of the victims, the bail of the appellant No. 1 was cancelled. His application to the High Court for bail thereafter failed on the 5th of October 1970, but while dis missing the application, the High Court noted that the committal proceedings had taken more than eighteen months and ordered that this case be tried and concluded within three months from today.

The remaining thirteen appellants were released on bail by the learned Additional Sessions Judge, Karachi, on the 9th of December 1969; but, again, on the application of the father of the said victim, the High Court set aside the order and remanded all the thirteen appellants to _custody but again directed that the case "shall be heard from day to day unless this is not possible for compelling reasons".

In spite of these directions, the case was neither proceeded with day to day, nor was it completed within three months but dragged on indefinitely. After two years, the appellants again, renewed their efforts for bail in the High Court. Their application was dismissed on the 15th of June 1972, on the assurance given by the learned Assistant Advocate‑General, Sind, that "from 1st July 1972 and onwards there will be a day to day trial". The High Court, nevertheless felt it necessary to add a word of caution to the

trial Court "not to allow unnecessary adjournments" and to give the appellants "liberty to move the Court for bail" again, if for no fault of theirs further delay ensued and the undertaking given was not fulfilled.

The undertaking was again not fulfilled nor did the case proceed from day to day. In this state of affairs, the appellants, again, moved the High Court in December 1972, but the High Court, in spite of the liberty earlier given, dismissed their application on the 11th of December 1972, observing that "since there now remain only three witnesses to be examined and the trial is about to conclude, delay cannot be a factor for releasing the appli cants on bail".

The trial, however, dragged on. The prosecution evidence concluded on the 7th of November 1973 and the defence witnesses, who were only three in number, were summoned on the 27th of November 1973, but then the presiding officer of the Court thought it fit to proceed on leave for Haj and Ziarat. He is still away and no further progress has been made in the case.

In this state of affairs, the appellants, again, moved the High Court in December 1973, for bail, but again a Division Bench of the Sind & Baluchistan High Court dismissed their application, because, the presiding officer was expected to resume his duties on the 5th of April 1974, although it was constrained to express its "disapproval of the manner in which the trial has

proceeded."

We must say at once that this is the most unusal and unprecedented case of delay that has come to our notice in our long experience. A trial which commenced in October 1971, is still not complete. This is, to say the least, a most disgraceful and scandalous state of affairs, and it is for this reason that when this matter first came before us, we directed notice to issue to the learned Advocate‑General, Sind. The learned Assistant Advocate‑General has now appeared, and his contention is, firstly, that the defence and the accused have also contributed towards producing this state of affairs, and, secondly, that in any event mere delay, however long and however unjustified it might be, cannot be a ground for bail, even though inordinate delay amounting to abuse of process of the Court may be a sufficient ground for quashing the proceeding itself. It cannot, however, be a sufficient ground for enlarging accused persons on bail.

On the other hand, the learned counsel appearing on behalf of the appellants has pointed out that delay is a relevant circumstance which can be taken into consideration for the granting of bail. This has now even received statutory recognition in the Law Reforms Ordinance of 1972, even though the specific provisions regarding bail on account of delay .have not yet been brought into force. Learned counsel has also referred ,us to a number of decisions of this Court where inordinate delay was, do fact, taken into account starting from 1968 in the cases of Riasat Ali v. Ghulam Muhammad (PLD1968SC353), Manzoor v. The State (PL D1972SC 81), Manzoor Khan v. Kamir (1972SCMR207), Muhammad Sadiq v. Muhammad Shafi (1973SCMR212) and Bashir Ahmad v. The State (P L D 1973 Lah. 486).

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.

We are reluctant to interfere in matters of bail; but, in a case of this kind which, as observed earlier, is the most scandalous that has come to our notice, we cannot possibly shut our eyes and encourage the perpetration of such a flagrant abuse of the processes of law, in spite of the repeated warnings of the High Court and its specific directions for completing the hearing at an early date.

We have also carefully examined the 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 equally reprehensible in this case. By ,far the majority of the adjournments 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 a lenient view of the flagrant disregard of its directives 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.

We, accordingly, allow this appeal, set aside the order of the High Court and direct that the appellants be enlarged on bail of Rs. 10;0;;0 each, and one surety each of the like amount to the satisfaction of the learned. Sessions Judge, Karachi.

Let a copy of this judgment be also sent to the learned Chief Justice of the Sind & Baluchistan High Court for such action as he may consider necessary against those responsible for this unprecedented delay, in the: completion of the trial.

Appeal accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.