1. NASIM HASAN SHAH, J.-This petition for leave to appeal is directed against the order dated 13-9- 1978 of a learned Single. Judge of the Lahore High Court, passed in Cr. Miss. No. .1833-B of 1978, cancelling the bail granted to the petitioner by the learned Sessions Judge, Kasur, in a murder case registered against him along with three others under : section 302/34, The facts forming the background of this petition, briefly stated, are that on the statement of Amanat respondent (hereinafter referred to as the complainant) an F. I. R., was registered at Police Station Saddar, Kasur, on 1-2-1977 at 4-15 a.m. Against the 17 petitioner and his co-accused Niamat A.I, Noor Abmad and Rehmat for committing the murder of Muhammad Hayat, son of the complainant, at about digarwela on 31-1-1977 within the area of Kotirai Abu Bakar, Tleehsil and District Kasur. According to the averments made in the F. I. R, some three years before the present occur--rence Mst.Jeenan, wife of the complainant, committed the murder of Muhammad Yahya, son of Rebmat co-accused, for which she was convicted and sentenced to five years' R. I. The complainant abandoned the village and went to Khudian along with his daughter Mst. Baidan and son Muhammad .Hayat. Oil the, fateful day when the 'complainant along with his son Mohammad Hayat, daughter Mst. Baidan and father Noor Muhammad was passing near the land of one Rehma Dogar, he saw the petitioner and his co-accused present there, On seeing them, Rehmat accused raised a lalkara that the murderers of his son Muhammad Yahya were going and they should not be spared. On this, Rehmat, Noor Mohammad and Niamat accused, armed with sotas, along with the petitioner, attacked the complainant party they forcibly took Mohammad Hayat deceased to the land of one Rehmat son of Jalal Din where Rehmat and Karamat accused inflicted sota blows on his head and injured him seriously. After the accused decamped, the deceased, who was in a precarious condition, was taken to the village where he expired. The police arrested all the four accused in this case. However, it subsequently found Niamat A.I, Noor Mohammad and Rehmat accused to be innocent. Niamat A.I and Noor Mohammad were allowed bail by the learned Addl.
2. Sessions Judge, Kasur on 14-6-1977. The complainant filed a petition (Cr. Misc. No. 3960-B of 1977) to challenge this order in the High Court, but without any success. Rehmant was allowed bail by the High Court on 30-8-1977. Karamat A.I petitioner was also allowed bail by the Sessions Judge, Kasur, vide order dated 24-4-1978. The complainant moved Cr. Misc. No. 1833-B of 1978 for the cancellation of his bail in the Lahore High Court and a learned Single Judge by his order dated 17- 9-1978 cancelled the bail of the petitioner on the ground that the learned Sessions Judge had not exercised his discretion in a proper manner. The petitioner is aggrieved of this order. Hence this petition.
3. This petition earlier came up for hearing before a Bench of this Court on 26-10-1978 when notice was issued to the State. In pursuance of the said notice Khawaja Muhammad Afzal, Additional Advocate-General (Punjab) has appeared before us today.
4. Before us, the learned counsel for the petitioner, in support of this petition, raised the following three contentions
(i) that there is a delay of 12 hours in the lodging of the F. I. R. ;
(ii) that the petitioner's case is identical to that of his co-accused who had been allowed bail and their bail had not been cancelled by the High Court ; and
(iii) that the petitioner has been in custody for nearly two years along with his co-accused and that inordinate delay will occur before the trial of the petitioner takes place.
5. As for the first contention, we may observe that the police station is, situate nearly fourteen miles away from the place of occurrence and the learned Additional Advocate-General has informed us, on instructions, that' there is only one kacha path connecting the spot with the police station. The first contention is, therefore, repelled. In support of the second contention that the case of the petitioner is identical to that of his co-accused who bad been allowed bail which had not been cancelled even by the High Court, the learned counsel for the State has drawn our attention to the F. I. R. Wherein the role attributed to the petitioner is that be snatched sota (with iron fitted handle) from the hand of Noor Mohammad, father of the complainant, to contend that the part attributed to him is not identical to that attributed, to his co-accused. We may observe that this submission of the learned counsel for the petitioner requires us to go into the factual aspects of the case which is not possible at this stage.
6. The main ground for consideration, therefore, is that of delay in the commencement of the trial. In this behalf it is submitted that the occurrence took place on 31-1-1977 and the challan was submitted to the Court on 11-10-1978. Hence two years have elapsed since the petitioner was arrested. The counsel has pointed out that there are three hundred murder cases to be tried by the two Sessions Judges at Kasur, and the petitioner's case is fixed at the tail end of the list and is, therefore, not likely to be taken up for another three years or so. Placing reliance on Riasat A.I and another v. State (PLD1977SC480) he submits that this is a fit case for the grant of bail on the ground of delay.
7. The learned Additional Advocate-General has pointed out that in fact there are now three Sessions Judges at Kasur and the plea that the trial will not take place for another three years is not well founded. Moreover, delay per se is not a good ground on which bail can be allowed.
8. We are inclined to agree with the submission of the learned Addl Advocate-General that delay per se is not a good ground on which bail Caw be allowed. The delay, to constitute a ground for bail, must be unconscion-able, amounting to an abuse of the process of the Court, which is not the case here. We do not, therefore, think that the petitioner is entitled to the grant of bail at this stage.
9. He can, however, move the High Court in case the delay, if any, caused in the disposal of the case, becomes unconscionable.
10. The petition is dismissed with the above observations.