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Criminal Petition for Special Leave to Appeal No. 47‑R of 1978, decided on 10th January, 1979.

(On appeal from the judgment and order of the Lahore High Court, Lahore, dated 4‑7‑1978 in Cr. Misc. No. 1642‑B/78).

----Ss. 497 & 498‑Bail‑Delay‑Failure to give even any approximate estimate of time when trial would commence‑Can very well be considered as a factor likely to lead to miscarriage of justice especially when 3 years and 41 months had already elapsed without any substantial progress having been made in matter‑High Court, in view of peculiar circumstances of case, held, rightly released accused respondent on bail.‑[Delay].

Riasat Ali and another v. The State P L D 1977 S C 480. ref.

Afzal Siddiqi, Advocate‑on‑Record for Petitioner.

M. Bilal, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on -Record for Respondents Nos. 1 and 2.

Date of hearing: 10th January, 1979.

‑‑Kala son of Qurban alias Pullu and Kuazam son of Farman Ali (respondents) are involved in a case under section 302/34, P. P. C. for causing the death of Faiz Akbar son of Muhammad Ismail brother of the present petitioner Mir Akbar. The accused applied for bail but their bail application was rejected by the learned Additional Sessions Judge, Rawalpindi, on 24‑1‑1978. The accused then filed a, Criminal Miscellaneous Application No. 1642‑B of 1978 which was accepted by a learned Single Judge of the Lahore High Court by means of his judgment and order dated 4‑7‑1979 on the ground that "the petitioners (which mean the accused) have already been in jail for a pretty long time and there is no likelihood of any early trial on account of change of procedure. This contention has not been controverted by counsel for the state". In this respect the learned Single Judge relied on a judgment of this Court reported Riasat Ali and another v. The State (P L D 1977 .S C 480). The complainant petitioner has come up in a petition for special leave to appeal against the same to this Court and prays for cancellation of the bail of the accused

2. Learned counsel for the petitioner has argued that no doubt there has taken place a delay in the trial of accused which even up till now has not commenced but according to him delay pre se was no ground, for grant of bail in a case of this type involving capital punishment. The contention in view of the peculiar facts and circumstances of this particular case has no merit inasmuch as each case is to depend on its own facts and circumstances. It may be mentioned that the learned Single Judge had himself earlier rejected a bail petition of the accused by his order dated 28‑1‑1976 and when the case came up to him again on the application of the accused, he noticed that even though the occurrence was of August, 1975 but the State counsel also shared the view that there was no possibility of the commencement of the trial in near future and that even no proximate or possible estimate in that respect could be given by him. In these circumstances the learned Single Judge rightly exercised his discretion in favour of the accused and granted bail to them, obviously because, it would not have been justified to let the accused suffer for an uncertain and unpredictable period. Failure to give even any proximate estimate of the time when the trial would commence, in the circumstances, could very well be considered as a factor which was likely to lead to miscarriage of justice especially when three years and four and a half months had already elapsed without any substantial progress having been made in this matter. We do not think that the High Court in view of the peculiar facts and circumstances of the present case violated any principle of law warranting interference by this Court in a matter of this nature. The petition has no merit and is dismissed.

Petition dismissed.

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