1. ANWARUL HAQ, C J.-This petition seeks leave to appeal against an order made by a learned Judge of the Lahore High Court on the 3rd of February 1979, by which he has cancelled the bail allowed by the learned Sessions Judge, Kasur, to the petitioners Muhammad Hanif, Muhammad Sharif and Shaukat during the pendency of a case against them under sections 302 and 307 of the Pakistan Penal Code read with section 34 thereof. The bail had been allowed to petitioners Sharif and Shaukat on the 1st of June 1978, and to petitioner Muhammad Hanif on the 27th of August 1978, by two separate orders, and two separate applications for cancellation of the same had been filed in the High Court, which were disposed of by the learned Judge by a single order.
2. The case was registered against the three petitioners and Haji Rahmatullah, father of petitioners Shaukat and Muhammad Hanif, at Police Station Patoki on the 2nd of November 1977, on the allegations that the deceased Muhammad Rashid, his sister Mst. Sharifan and their brother Khushi Muhammad, who made the First Information Report, were attacked by the petitioners in the area of Mondaky, Chak No. 34, after petitioners Hanif and Shaukat had armed themselves with 12 bore guns and petitioner Sharif and the co-accused Haji Rehmatullah were carrying sotas. In the first instance, petitioner Muhammad Hanif had fired a shot that hit Mst. Sharifan on her face, and then petitioner Sharif had snatched the gun from the hands of Hanif and fired at Muhammad Rashid, hitting him on his chest and arms. The second shot was fired by petitioner Shaukat which also hit the deceased when he had already fallen on the ground after receiving the first shot.
3. As would appear from the narration of facts in the order of the High Court, several applications have been made by the accused persons for the grant of bail, and petitioner Hanif even approached this Court by way of Criminal Petition No. 241 of 1978, but bail was refused on that occasion. However, by the two orders dated the 1st of June 1978 and the 27th of August 1978, bail was allowed to the petitioners by the learned Sessions Judge mainly on the ground that for a period ranging between 6 and 9 months the prosecution had failed to submit a challan against the accused persons, nor had it furnished any explanation for this delay. The learned Judge in the High Court has taken the view that although it was correct that the challan had not, in fact, been submitted upto the date of the hearing of the applications in the High Court, yet the delay was possibly due to the fact that the petitioners had been moving successive bail applications, in connection with which the challan file had been submitted to the Sessions Court and then to the High Court; and that there was some delay owing to the machinations of the Ahlmad of the Magistrate's Court who had returned the challan to the Investigating Officer with some objections without informing the Magistrate, who could not, therefore, take cognizance of the case under section 190 of the Criminal Procedure Code. The learned Judge has further expressed the view that delay per se was not a good ground for the grant of bail, and that the commencement of the inquiry or trial could be postponed or adjourned even without taking cognizance of the case. On these findings he came to the conclusions that "Learned Sessions Judge was not justified in accepting summarily application for release of the respondents on bail against whom there was ample material to demonstrate manifestly that charge against them was not groundless and the prosecution was not to blame for omission to file the challan."
4. Leave to appeal is sought mainly on the ground that delay in non-- submission of the challan is a valid ground for the grant of bail, and, therefore the learned Sessions Judge had exercised his discretion properly in allowing bail to the petitioners, and in the period of their enlargement on bail the petitioners have not, in any manner, abused their liberty; and that, in any case, there was no compulsion to cancel the bail allowed to the petitioners, as their trial could have commenced within weeks of the submission of challan. The learned counsel for the petitioners has placed reliance on Amir v. Bakhshu and 6 others (PLD 1975 Lah. 626), Phool Muhammad Khan v. The State (1975 SCMR 137), Shahid Arshad v. Muhammad Naqi Butt and 2 others (1975 SCMR 360), Falak Sher v. The State (1979 SCMR 103), and Faiz Rasool v. The State (1979 SCMR 67).
5. The petition is opposed by Mr. Yusuf A.I Khan, Bar-at-Law, appearing on behalf of the complainant, on several grounds. He submits, in the first place, that as there were two separate applications for cancellation of bail in the High Court, two petitions for special leave to appeal should have been filed, notwithstanding the fact that both matters had been disposed of by the High Court by a single order. He contends that on this short ground alone the composite petition should be dismissed. He further submits that as the challan, was, in fact, ready on the 14th of January 1978, the delay in its submission to the Court of the Magistrate was primarily due to the petitioners who kept on filing successive applica--tions for bail, and the challan filed was, therefore, shuttled from one Court to the other. Finally, he argues that the bail application of petitioner Muhammad Hanif had already been rejected on merits by the Supreme Court in Criminal Petition No. 241 of 1978, and mere delay in the submission of the challan did not therefore provide any justification to the learned Sessions Judge to grant bail to the petitioner Muhammad Hanif at any rate.
6. Kh. Muhammad Afzal, learned Additional Advocate-General, appearing for the State, has informed us that although the challan had been drawn up by the Investigating Officer on the 14th of January 1978, it was submitted for the first time to the Court of the Ilaqa Magistrate on the 26th of August 1978, and before that the file had been called. First by the Sessions Court and then by the High Court in connection with the bail applications filed by the petitioners. He further states that in October, 1978, the Inspector-General of Police had ordered further investigation on a request made by the petitioners, but it appears that no progress had yet been made in that direction due to non- co-operation from the side of the complainant party. Finally, the learned Additional Advocate- General states that the challan has since been received in the Sessions Court on the 20th of February 1979, and subject to the result of any further investigation, the case could be fixed for trial by the Sessions Court at any time.
7. After hearing the learned counsel for the parties at considerable length, we have formed the view that no compelling justification has been made out for our interference in the matter.
8. It will be seen that on merits the grant of bail was not found to be justified by this Court, when a prayer in this behalf was brought to this Court by petitioner Muhammad Hanif by way of Criminal Petition No. 241 of 1978. It is true that inordinate delay in the non-submission of the challan could furnish a valid ground for the grant of bail, but the learned Judge in the High Court was right in thinking that before such delay is accepted, the Court ought to look into the circumstances which had caused the delay. As in the present case, the responsibility for the delay at least partly fell on the petitioners, and partly on the unexplained conduct of Court officials, it was the duty of the Sessions Judge to examine all the circumstances which had prevented the submission of the challan to the) Court of the Magistrate from the 14th January 1978 to the 26th of August 1978, on which date the challan was returned by the Ahlmad of the Magistrate's Court, before coming to the conclusion that the non-submission of the challan by itself furnished a good ground for the grant of bail. The circumstances, as analysed by the learned Judge in the High Court, and as disclosed during the discussion before us, lend support to the conclusion reached by the High Court that in this particular case the delay in the submission of the challan was not such as to justify the grant of bail to the petitioners.
9. It is also true that in case the trial of the petitioners was likely to commence in a few weeks time, and if there was no allegation that they had misused the privileges of bail, there would ordinarily be a justification for not cancelling the bail at this stage, but we find that the petitioners themselves have asked for further investigation, and it cannot be surmised B at this stage as to how much time this investigation is likely to take, and whether in the presence of this request the trial of the petitioners can commence without waiting for the result of fresh investigation. It appears, therefore, that this particular factor is of a conjectural nature at this stage, and cannot affect the fate of the present petition.
10. The submission made by Mr. Wasim Sajjad that the petitioners have also registered a cross-case under section 307 of the Pakistan Penal Cod against the complainant party, has no bearing on the question of the grant of bail in this case. On the facts alleged by the prosecution, an so far apparently found by the Investigating Officer, it is not possible for us to hold that the case of the petitioners does not fall within the ambit of subsection (1) of section 497 of the Criminal Procedure Code.
11. Keeping in view all the considerations mentioned in the preceding paragraphs, we are not inclined to interfere with the order made by the High Court. The petition, accordingly, fails and is hereby dismissed.
12. It is, however, clarified that if the fresh investigation requested by the petitioners furnishes any new ground for the grant of bail, then they would not be precluded from urging the same before the proper Court.