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Criminal Petition for Special Leave to Appeal No. 319‑B of 1978, decided on 28th September 1978.

(On appeal from the order dated 31‑7‑1978 of the Lahore High Court passed in Criminal Miscellaneous No. 2906/B of 1978).

Criminal Procedure Code (V of 1898)‑

----Ss. 497 & 498‑Bail‑Delay‑Delay, per se, not a good ground of bail yet accused may be entitled to bail in case of unconscionable and inordinate delay in trial amounting to abuse of process of Court‑Petitioner in custody for about 1 years and his trial expected to commence within a year or so‑Delay in such circumstances, held, could not be described as unconscionable.-

Riyasat Ali v. State P L D 1977 S C 580 distinguished.

Sher Zaman v. Muhammad Azad 1978 S C M R 248; Barkhurdar v. Liaqat Ali P L D 1977 S C 434 Muhammad Salahuddin on Fundamental Rights in Islam and Salmond's Jurisprudence ref.

Muhammad Ismail Chaudhari, Senior Advocate Supreme Court assisted by Sh. Abdul Karim, Advocate‑on‑Record for Petitioner.

Nemo for the State.

Date of hearing : 28th September 1978.

‑This petition for leave to appeal is directed against the order dated 31‑7‑1978 passed by the Lahore High Court, whereby the bail application (Cr. Misc. No. 2906/B of 1978) of the petitioner was dismissed in limine.

A case was registered against the petitioner and some others under sections 302/149 and 148, P. P. C. on 8‑5‑1976 at Police Station Wahndo, Tehsil and District Gujranwala. The petitioner applied for bail before the Sessions Judge mainly on the ground of delay. This application was dis missed by the learned Additional Sessions Judge vide his order dated 17‑7‑1978 and on the point of delay he observed as follows :‑

"This case relates to the year 1976 and is not expected to be fixed for hearing in the near future. It might take over a year for the trial of the case to take place but this argument should generally be available to all the accused persons at least in cases which are older than 1976, and there are quite a few of them.

The petitioner then applied to the High Court and he relied upon this Court's judgments in Riyasat Ali v. State (P L D 1977 S C 480) and Sher Zaman v. Muhammad Azad (1978 S C M R 248). The learned Judge rejected he application for bail observing that this was a case of double murder where the petitioner and his co -accused killed two persons by inflicting several Toka injuries on their necks, severing the neck of one deceased. On the point of delay, the learned Judge, placing reliance upon this Court's judgment in Barkhurdar v. Liaqat Ali (P L D 1977 S C 434) found no force in it. The application for bail was accordingly dismissed. The petitioner has, therefore, moved this Court for grant of special leave to appeal.

The main argument of Ch. Muhammad Ismail, Advocate, is that this Court has expressed conflicting views on the question whether an accused is entitled to the grant of bail on account of delay in the commencement of his trial, with the result that in some cases bail is allowed on the ground of delay while in others it is refused. It is submitted that both under the Islamic Jurisprudence as well as under the Anglo Saxon law it is not possible to make such a discrimination and in this connection reliance was placed on the Book of Mr. Muhammad Salahuddin on the subject of "Fundamental Rights in Islam" and Salmond's Jurisprudence. It was also submitted that in the circumstances of this case the judgment of this Court in the case of Riyasat Ali v. State, cited above, ought to be followed.

The proposition that no discrimination can be made between different cases of a similar nature and that the Court should adopt uniform standard in their disposal is indisputable. We may observe that on the question delay as a ground for grant of bail this Court has held that delay person is not a good ground on which bail can be allowed. However, if there be such unconscionable and inordinate delay in the trial of a case which amounts to an abuse of the process of the Court, the accused may, in such circum stances, be entitled to the grant of bail. In the case of Riyasat Ali relied upon by the learned counsel for the petitioner, the Court was informed that although the accused had already been in study for one year and nine months, their trial was not likely to commence for another two and a half years. The above delay, in the circumstances of that case, was considered to be unconscionable, amounting to an abuse of the process of Court. In the instant case the petitioner has been in custody since May 1976 and it is expected that his trial will commence within a year or so. In the: circumstances of the present case the delay cannot be described as unconscionable. We do not, therefore, think that the discretion exercised by the High Court in this case has been exercised arbitrarily or illegally. No ground for interference, therefore, is made out. This petition is, accordingly, rejected.

Petition rejected.

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