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Criminal Miscellaneous No. 1780/B of 1974, decided on 3rd July 1974.

---S. 497(I), proviso‑Bail‑[Murder case]‑Delay‑Not a lawful ground for grant of bail yet established as such by virtue of "law declared" by Supreme Court‑Supreme Court granting bail in cases of inordinate delay of one year and upward‑Accused in jail for last 5 months but challan not put in Court as yet‑Case, held, not covered by guideline provided by Supreme Court ‑Bail declined in circum stances.‑[Bail].

Muhammad Aslam and others v. The State P L D 1974 Note 104 at p. 156 and Muhammad Ayub v. Muhammad Yaqub P L D 1966 S C 1003 ref.

Shan v. The State P L J 1974 Cr. C (Lah.) 296 not fol.

Muhammad Din v. State Cr. A. No. 70 of 1972 (S C) rel.

Maqbool Ilahi Malik for Petitioner.

A. W. Butt for the State.

This is an application by Karim‑ud‑Din, Ali Muhammad and Abdur Rashid, under section 497/493, Cr. P. C. for the grant of bail. They are accused of an offence under section 302/34, P. P. C. for the murder of Muhammad Rafiq while armed with hatchet and dangs Karim‑ud‑Din and Abdur Rashid petitioners are said to have been armed with dangs while Ali Muhammad petitioner was armed with a hatchet.

2. The ground urged on behalf of the petitioners is that it is now about 5 months since the F. I. R. was lodged against the petitioners but the Investigating Agency has not been able to put the challan in the Court of the learned Magistrate and there is thus an inordinate delay in the completion of tile inquiry, which entitles the petitioners to grant of bail. In support of this contention the learned counsel relied on Muhammad Aslam and others v. The State (P L D 1974 Note 104 at p. 156), wherein it was held that where the police did not file even an "incomplete" challan, the detention of the accused was against law and in clear violation of section 344, Cr. P. C. and the petitioner was released on bail. In the present case, however, the allegation is not that even an 'incomplete' challan has been filed. Moreover the learned State counsel has stated, on written instructions received by him, that the challan has in fact been filed in the Court of the learned Committing Magistrate, though after the filing of the present application. The learned counsel for the petitioner next cited Shan v. The State (P L J 1974 Cr. C. (Lah.) 296), in which bail was granted to persons accused inter alia of an offence under section 302, P. P. C. on the ground that the prosecution had failed to file the challan in the Court of the Committing Magistrate although 5J months had passed since the F. I. R. was lodged.

3. I have carefully considered these contentions. I find that beginning with the case of Muhammad Ayub v. Muhammad Yaqub (P L D 1966 S C 1003), the Supreme Court has laid down that person accused of offences punishable with death or transportation for life etc., bail is not to be granted unless "there appear reasonable grounds for believing that the petitioners are not guilty of an offence, punishable with death or transportation for life". But it has also been held by the Supreme Court that section 497, Cr. P. C., itself, provides three exceptions to the embargo placed on grant of bail to persons accused of such offence. These Exceptions relate to minority', 'sex' and infirmity'. There is no fourth Exception on which bail can be granted to persons accused of an offence punishable with death, transportation for life (now imprisonment for lift) or 10 years' R. I. Subsequently, the Supreme Court was pleased to grant bail to persons accused of such offences on the ground that there was an inordinate delay in the completion of the commitment proceedings and the accused persons were rotting in jail for no fault on their part. As such, although the law (i.e. section 497(1), Cr. P. C.) does not provide so for the grant of bail in such cases on the ground of "delay", yet it became a ground by virtue of the 'law declared' by the Supreme Court. We are therefore, guided on the question of grant of bail on the ground of delay by the decision of the Supreme Court. I find that the shortest period of the delay on the basis of which the Supreme Court has been pleased to grant bail to the accused is one year since the date of filing of the challan. Refer Muhammad Din v. State Criminal Appeal No. 70 of 1972 (Supreme Court) Apart from this, in another case the Supreme Court was pleased to grant bail where the Committing Court had failed to record the statement of a single witness although 17 months bad passed since the arrest of the accused/ petitioner.

I am therefore, of the view that unless the case is covered by any of these two judgments of the Supreme Court, the High Court ought not grant bail on the ground of "delay". I am therefore, most respectfully compel to take a view different than the one taken by the learned Single Bench of this Court in Shan v. The State. As a result, the application is dismissed.

Petition dismissed.

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