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Criminal Miscellaneous Application No. 518 of 1986, decided on 14th December, 1986.
‑‑‑S. 497(5)‑‑Bail, cancellation of‑‑Statutory delay‑‑Accused remaining in jail for 20 months‑‑Bail granted on ground of apprehended delay‑ Future apprehended delay, held, was not covered by statute providing a continuous period of exceeding two years detention‑‑Bail granted by Court below, cancelled in circumstances.‑‑[Delay].
Saleh Muhammad v. The State 1983 S C M R 341 ref.
Shaikh Mir Muhammad for Petitioner.
A.G. Mangi, Asstt. A.‑G. for the State.
This is an application for cancellation of bail of accused Manzoor Ahmad. I have heard Mr. Shaikh Mir Muhammad for the applicant. It is contended that the bail was granted to the accused on the ground of delay when accused has remained in jail for only 20 months. It is contended that the learned Additional Sessions Judge has wrongly interpreted the proviso 3 of section 497 and considered that he is going for training and case is not likely to be concluded.
Mr. A . G . Mangi supports the cancellation and submitted that the bail has wrongly been granted.
The bail plea of applicant was rejected twice on merits by the same Court as there is a direct charge against the applicant. I refer to a case of Saleh Muhammad v. The State reported in 1983 S C M R 341. The third proviso to section 497 has been interpreted as under:‑
"Since the date of the leave granting order in this case, however, this Court has authoritatively ruled on the interpretation of the proviso in question and disposed of the questions of law raised in the contentions now urged on behalf of the second respondent, in Criminal Appeal No.34 of 1982 Naair Hussain v. Ziaul Haq, etc., On the first point it was held in this case:‑
"The interpretation, it is again pointed out with respect, is violative of the clear language used in the statute. It provides that the accused must "have been detailed for a continuous period exceeding two years". Obviously future apprehended delay is not covered by the statute; otherwise, in Courts clogged with heavy arrears, the accused in murder cases which are not likely to be taken up for a period of two years or above, would be entitled to claim the concession of bail as of right, even on the next day of their arrest; which could not be the intention of the Legislature".
On the second point, the following remarks were made:‑
"The ground of delay for grant of bail in cases falling within the prohibition contained in subsection (1) of section 497, Cr.P.C. before the effective amendment, was undoubtedly controlled by the discretion of the Court concerned. The facts varied from case to case and accordingly the discretion exercised was creating some anomalies. That is why the Legislature intervened and the law was made more certain. One of the changes effected in the statute from the previous practice in exercise of discretion, was that the grant of bail on expiry of certain specified period and under certain conditions was made a matter of right and not only of discretion. We do not agree with the learned counsel that the use of the word 'shall' in the third proviso, is in the meaning of 'may'. Learned counsel failed to notice that while in the first proviso the word 'may' has been used in the second and third the word 'shall' has been used with a view to highlight it. Moreover, reading 'may' for the word 'shall' in third proviso would be in large majority of cases to the detriment of the accused and his liberty, when it becomes due in the context of bail. We accordingly repel the argument of the learned counsel and hold that the word 'shall' in third proviso will have to be read in its ordinary sense. That being so, there is nothing in the entire proviso, its main part as also sub‑clause (b) 'to show that the grant of bail on ground of delay in cases covered thereunder has been left (in a general way) to the discretion of the Court. We also do not agree with the argument that the matter being entirely of the discretion of the Court, it is empowered to take into account the expected /apprehended delay."
There is, therefore, no force in the submission of the learned counsel for the second respondent. We have accordingly reached the conclusion that the amended law was not correctly applied by the learned Judge of the High Court and his order, therefore, cannot be sustained."
For the reasons stated above, the bail granted by the Court below is cancelled. Accused be remanded to custody.
Before parting with this order, I may mention that accused was properly served and on the last date of hearing his Advocate has withdrawn the power and the notice was repeated but nobody appeared, therefore, after hearing the learned counsel for the applicant and Assistant Advocate‑General this order has been passed.
S . A . / M‑13 / K Bail cancelled.
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