This is an application for bail under section 498 read with section 497, Cr. P. C.
2. The allegation is that the petitioners excepting Noor Muhammad son of Fateh Shah (petitioner No, 16) accompanied by another companion of theirs, namely, Khanu deceased and all armed with rifles and 12 bore guns attacked the complainant party who had also five 12 bore guns with them.
The result was that five persons on the side of the complainant party were killed, while Khanu mentioned above belonging to the accused party was killed. Several other persons on both the sides were injured. A house of the complainant party, where some of them tried to take refuge, was also set on fire with the use of kerosene oil alleged to have been brought by Nur Muhammad (petitioner No, 16) mentioned above.
3. The immediate cause is alleged to be an altercation during a cattle fair over the performance of their bullocks in a competitive race. The latent motive, however, is said to be a previous murder and the estrangement between Sher Muhammad accused and his wife who is the sister of Ata Muhammad deceased. Cross cases were registered against both the parties. The complainant party was granted bail by the learned Additional Sessions Judge, Sargodha, which was cancelled by this Court. However, on a Petition for Special Leave to Appeal No, 290 of 1968, leave has been granted in that matter and the accused persons in the cross case, i,e,, the complainant party, have been allowed bail by the Supreme Court at the time of grant of leave on 3rd September 1968.
4. In the present case, the application for bail of 12 out of 16 petitioners was refused by the learned Additional Sessions Judge, Sargodha, on 2nd February 1968. They applied to the High Court for bail on 14th May 1968, on the basis of the merits involved in the case ; the fact that the six accused in the cross case had been released, by them, on bail by the Additional Sessions Judge, Sargodha; that Dost Muhammad and Muhammad Khan petitioners were aged about 90, infirm and weak ; that Noor Muhammad (petitioner No, 16) was empty-handed ; and that they were in jail for about a year at that time and that it was likely to take more time for the case to be concluded. My learned brother Bashiruddin Ahmad, J., passed the following order on 16th May 1968, dismissing the petition for bail :- "Ch. Nazir Ahmad.
The petitioners and their co-accused used fire-arms in the commission of murders and attempted murder. Even if some of them did not actually cause injuries to the victims of the crime still they would be liable with the application of section 149, P. P. C. The question whether the petitioners and their co-accused acted in exercise of the right of self-defence will have to be decided at the trial.
Dismissed."
5. In support of the present petition for bail, Ch. Amjad Khan, the learned counsel for the petitioners, has raised the following contentions :--
(i) That the accused persons in the cross case have been allowed bail by the Supreme Court.
(ii) That on the merits of the case, there is no material to hold that there appear reasonable grounds for believing that the petitioners are guilty of murder. In support of this contention, the learned counsel referred to the question of recoveries, motive and probabilities in the case.
(iii)That Dost Muhammad and Muhammad Khan petitioners are of extreme old age.
(iv)That Noor Muhammad son of Fateh Shah (petitioner No, 16) is not alleged to have been a member of the unlawful assembly but is stated to have only supplied the kerosene oil to the other petitioners for putting the house of the complainant party on fire. He is not alleged to have attacked any body or caused any injury to any person.
(v) That the petitioners were arrested in June 1967; 22 months having passed in the commitment proceedings, only 16 P. Ws. have been examined out of 21 and the case has not yet been committed to the Court of Session. The learned counsel further stated that the proceedings are held up at present, because the files relating to the case have been summoned in the Supreme Court in connection with the bail matter in the cross case.6. I have reproduced the order passed on 16th May 1968, by this Court. Excepting the question of delay and the grounds of bail for the petitioner No, 16, all the other grounds taken before me were taken in the petition filed in this Court on 14th May 1968. The slight difference in the circumstances at that time was that the accused persons in the cross case had been released on bail by the Additional Sessions Judge, and at present they have been released by the Supreme Court at the time of granting leave to appeal against the order of the High Court cancelling their bail. I have perm ed the order passed by their Lordships of the Supreme Court. Their Lordships granted leave to the accused persons in the cross case, in the circumstances that a learned Single Judge of this Court relying on Muhammad Aslam and others v. The State, had cancelled the bail. Their Lordships were of the view that the observations in that ruling were explained in a subsequent ruling, i e., Nadara v. Jamait Khan and another, and in an unreported decision (Ch. Abdul Malik v. The State) in Petition for Special Leave to Appeal No, 162 of 1968. Therefore, the matter required consideration of their Lordships. In these circumstances, it cannot be held that their Lordships have granted bail to the accused persons in the cross case on the consideration of the merits involving any benefit to the petitioners in respect of the present case. 1 here before, the fact that the accused persons in the cross case have been released on bail, does not help them.
7. The ground of age of Dost Muhammad and Muhammad Khan petitioners is vehemently contested, on facts, by the learned counsel for the State. In the earlier application as well, this ground was taken. However, it is not the case of the learned counsel for the petitioners before me that these two petitioners are sick or infirm. In the circumstances of the present case, I do not think that the fact that they are of old age can be of any avail to them for the purpose of bail.1 2
8. In so far as the grounds based on the other merits of the case is concerned, after hearing the learned counsel for the parties and going through the material placed before me, I am unable to disagree with my learned brother Bashiruddin Ahmad, J., in so far as the evaluation of those merits for the purpose of bail is concerned. I would have refrained from hearing this petition and would have wished it to be disposed of by his Lordship ; but for the reason that this petition was, at an earlier stage, placed before him on 15th October 1968. His Lordship in the absence of the learned counsel for the petitioners, formed the view that there is no merit in the petition and dictated the order. But before signing it, the learned counsel for the petitioners appeared and offered an explanation for his absence which was accepted by his Lordship and, in these circumstances, did not sign the order and observed that the matter be placed before another Judge. I have already stated that there are no reasons to differ with the order passed by this Court on 16th May 1968. It is not necessary to reiterate those grounds; nor is it necessary to comment any further on the merits of the case, because that may prejudice the case of either party at the trial stage.
9. In so far as the case of Noor Muhammad petitioner is concerned, the only ground stated in the earlier application on his behalf was that he was empty-handed. The learned counsel for the petitioners has explained that the said petitioner is not directly connected with the other petitioners. He is not alleged to have been a member of the so-called attacking party of the accused persons ; nor is he said to have participated in the occurrence, except that at one stage on the asking of the other accused persons he is alleged to have supplied them kerosene oil. In the circumstances alleged in the prosecution story, it is not possible to determine at this stage that when Noor Muhammad supplied the kerosene oil he did so voluntarily with the intention of helping the accused persons. A possible explanation on his behalf can be that he might have acted under fear of death. Similarly, it can also be urged on his behalf that, if at all, he will be guilty of an abetment of the offence of B mischief. In his case, it can be safely held that at present there do not appear reasonable grounds for believing that he has been guilty of murder or any other offence punishable with death or transportation for life. Therefore, he can be released on bail.
10.The question of delay in concluding the proceedings at the commitment stage and the likelihood of a considerable more delay in the conclusion of the trial has been the cause of anxious thought for me in this case. The general proposition and principle that "justice delayed is justice denied," is more appropriately applicable to criminal proceedings, than to other type of proceedings in administration of law.
As to what is the legal effect of delay in our laws relating to criminal administration of justice has, by now, been judicially commented upon by their Lordships of the Supreme Court in more than one ruling. To cite only one, I may refer to Ghulam Muhammad v. Muzammal Khan and 4 others. In reiteration of their earlier view, after quoting some observations made in M. S. Khawaja v. The State, their Lordships observed at page 324 of the report as follows :- "The respondents next urge that the High Court's order being based upon reasons which are not altogether irrelevant should not be interfered with by this Court, since the proceedings having started in 1958, nine years have now elapsed. We are not impressed by this argument. The reasons given by the High Court were, by no means, cogent. If, in fact, an offence had been committed justice required that it should be enquired into and tried. If the respondents are not guilty they have a right to be declared as honourably acquitted by a competent Court. On the other hand, if the evidence against the respondents discloses a prima facie case then justice clearly requires that the trial should proceed according to law. The mere fact that a long period has expired since the initiation of proceedings is no ground for quashing the criminal proceeding as was pointed in the case of M. S. Khawaja v. The State."
This was a case under section 561-A, Cr. P. C., relating to quashment of proceedings in a regular criminal case. However, one thing is clear that the question related to the determination of the3 4 scope of the inherent powers of the High Court, in the light of the expression, to prevent abuse of process of any Court or otherwise to secure the ends of justice, used in section 561-A, Cr. P. C.
It was further observed in the case of Ghulam Muhammad cited above that the inherent jurisdiction of the High Court should not be invoked, where another remedy is available under the Code. In other words, this power was preserved to meet a lacuna in the Criminal Procedure Code and was not intended for vesting the High Courts with powers to make any order which they are supposed to consider to be in the interest of justice. In this connection, their Lordships observed at page 325 of the report as follows :- "The inherent jurisdiction given by section 561-A is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by the Code itself. The power given by this section can certainly not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute."
The procedure and law relating to bails in cases like the present one is provided in sections 497 and 498, Cr. P. C. Therefore, it cannot be said that the test laid down by their Lordships in Ghulam Muhammad's case for invoking the inherent jurisdiction under section 561-A is satisfied in the present case ; because evidently the Code provides for the determination of questions of bail, and the power under section 561-A will not be invoked as if it was an alternative or an additional jurisdiction. Thus it appears from the ruling of their Lordships of the Supreme Court-- (a)that "the mere fact that a loag period has expired since the initiation of proceedings is no ground" for acting under section 561-A, Cr. P. C., and (b)that "the inherent jurisdiction given by section 561-A is not an alternative jurisdiction or an additional jurisdiction," qua the provisions specifically contained in Criminal Procedure Code and, in this case, they are sections 497 and 498, Cr. P. C.
11. It has, by now, been repeatedly held that the power to grant bail under section 498, Cr. P. C. is not additional to or independent of section 497, Cr. P. C., and that the provisions contained in section 497, Cr. P. C. have to be kept in view, while passing order under section 498, Cr. P. C. It is also clear that in offences punishable with death or transportation for life, section 497, Cr. P. C. does not permit the granting of bail unless-
(i) there do not appear reasonable grounds for believing that the accused has been guilty of an offence punishable with death or transportation for life ; or
(ii) the case falls under the proviso to subsection (1) of section 497, Cr. P. C., which deals with persons under sixteen years of age, women and those who are sick or infirm.
This provision, i,e, the bar in respect of bail relating to offences punishable with death or transportation for life does not admit of any exception so far as the statute is concerned, in respect of inordinate delay in the initiation, continuance or conclusion of the proceedings against an accused person. There is no denying the fact that such delays are very common and are noticed in many cases which come before the High Court in one or the other jurisdiction. It is correct that some years ago and particularly at the time that the Criminal Procedure Code was enacted or was subsequently extensively amended, long delays in criminal trials, specially those relating to offences punishable with death or transportation for life, were either not visualised or were not of common occurrence. It may be that if the delays, as they do take place now some time from two to four years in the disposal of such like cases, had been visualised by the Legislature, the Code may have been further amended. In India, this aspect has been taken note of, at least, in respect of cases other than those falling in section 497(1), Cr. P. C. Be that as it may, the fact remains that subsection (1) of section 497, Cr. P. C., as it stands, does not in terms permit the releasing on bail a person who is accused of an offence punishable with death or transportation for life ; unless, of course his case falls under the Exceptions contained therein. If it is accepted that acting upon the salutary principle of "justice' delayed is justice denied," an inordinate delay, even in a case falling under section 497 (1), Cr. P. C. will entitle an accused person to bail, one will have to find out the power with regard to that in provisions other than those contained in section 497, Cr. P. C. One such provision can be section 561-A, Cr. P. C. and something can be said about the application of section 439, Cr. P. C. ; but both these provisions may not be attracted in view of specific provisions contained in subsection (I) of section 497, Cr. P. C. particularly in view of the interpretation by the Supreme Court on section 561-A, Cr. P. C.
12. The only other provision left in the context is section 498, Cr. P. C. As already stated, it has been interpreted to mean that considerations mentioned in section 497, Cr. P. C. will have to be kept in view, while passing orders under section 498, Cr. P. C. But it has not been interpreted in such a way so as to resolve the question of delay in the context of the above discussion. In my view, it needs further interpretation. May be that the question of delay and some similar, other questions, not provided in section 497, Cr. P. C. can be considered independently, under section 498, Cr. P. C.
Similarly section 561-A, Cr. P. C. may have to be interpreted so as to apply it to matter of bail, where the finding can be reached of abuse of process of Court on the basis of delay. In the latter case, however, the observations of the Supreme Court in Ghulam Muhammad's case will have to be interpreted and applied differently in the context of delay ; when it is relevant to a bail matter under section 498 read with section 497, Cr. P. C. This further interpretation may involve the examination of so many other questions ; for example the availability or arranging of the defence after the passage of a long time ; or the question whether the justification of custody for a reasonable time for criminal procedures to take their course, vanishes with the long passage of time so as to convert normal custody into a sort of punishment particularly in a case of capital punishment ; or the question whether the availability of coercive and corrective powers (qua speedy disposal including attendance by witnesses) with the trial and higher Courts makes any difference in so far as the apportioning of the responsibility for delay is concerned.
I may have examined this matter further ; but for my view, that the circumstances in the present case are not such that may entitle the petitioners to bail on ground of delay. The nature of the alleged attack and the results produced by it cannot be ignored. Moreover, in the present application, the only grievance made about delay is contained in paragraph 2 thereof ; wherein it is mentioned that 16 out of 21 witnesses have been examined. The last witness was examined on 22nd August 1968, and that till the filing of the application, i,e, 14th October 1968, no other witness was examined because the learned Magistrate went on leave. The grievance till 14th October 1968, appears to be in respect of the period between August 1968 to October 1968. Undoubtedly, it is a delay of three months and nothing was done in so far as the progress of the commitment proceedings is concerned. But that is not an inordinate delay. It is possible and necessary that in such like eventualities when the committing Magistrate, after recording the substantial evidence in the case, goes on long leave, the District Magistrate should make arrangement for the conclusion of commitment proceedings by another Magistrate ; wherever it is pos ible to do so, keeping in view the provisions contained in the Criminal Procedure Code as to transfer of cases and the distribution of work amongst the magistracy of the district. In this case, it is not alleged that it was possible in the circumstances in that district that the proceedings should have been continued by another Magistrate ; or that the petitioners ever made a move in that behalf. The learned counsel has also referred to the delay that has taken place after November 1968 ; because, according to him, the case is at the same stage as it was in August 1968. The explanation by the learned counsel for the State is that the files have been summoned in the Supreme Court ; therefore, the Magistrate could not proceed in the matter. In these circumstances, I do not feel inclined to examine any further the effect of delay on question of bail under section 498 read with section 497, Cr. P. C.
13. Before closing this aspect of the case, it is necessary to refer to some observations of their Lordships of the Supreme Court made in respect of delay, qua bail matter, in several cases. It may straightaway be observed that those observations are to be seen in the context of the circumstances of each case which came up before their Lordships. In Muhammad Nawaz and others v. The State, after making reference to Muhammad Alsam's case, it was observed that "the mere fact that there has been an inordinate delay in the disposal of a criminal case, is not in itself a ground for granting of bail to persons accused of having committed offences punishable with death or transportation for life, under section 302/34, P. P. C." In this case, there was a delay of more than four years. In another case reported as Riasat Ali v. Ghulam Muhammad and another, it was observed at page 35) of the report as follows :- "Inordinate delay in the prosecution of a case, if not explained by the prosecution amounting to an abuse of the process of law, can be considered as a ground for bailing out an accused person even in a murder case depending on the nature of the delay and the circumstances that have caused it. The prosecution is expected to proceed with its case with all despatch eliminating every avoidable d_lay in order to bring it to a close and thus to determine the fate of an accused person which hangs in the balance as long as the proceedings do not terminate one way or the other. The prosecution cannot be permitted to enlist the will of the Court on its side directly or indirectly in prolonging the worries and harassm ent of an accused person which are inevitably caused by his protracted detention without trial. Leisurely steps taken in filing the challan, tardy and halting production of evidence or seeking of unnecessary adjournments, except those necessitated by force of circumstances must be strongly deprecated. But delay in the prosecution of a case or the procrastination of the proceeding in a trial furnishing as a ground for bail have to be weighed and judged in each case on its own merits."
In this case, however, it was found that the ground of delay in the commitment proceedings, which had weighed with the learned Single Judge in the High Court for granting bail to the petitioner in the murder case, was prima facie untenable. The petitioners' case, in my view, does not get support from the observations of their Lordships of the Supreme Court in the above-cited case of Riasat Ali and the decision in the case of Muhammad Nawaz goes against them.
14. In the light of the above discussion, I grant bail to Noor Muhammad son of Fateh Shah (petitioner No, 16) in the sum of Rs, 10,000 with two sureties each in the like amount to the satisfaction of the Additional District Magistrate, Sargodha ; and finding no merit in the case of the other petitioners, dismiss their application. PLD 1967 SC 539 PLD 1968 SC 310 PLD 1967 SC 317 PLD 1965 SC 287 1968 SCM R 683 PLD 1968 SC 353