MUHAMMAD AFZAL ZULLAH, J.-This appeal through special leave is directed against the order dated 1-3-1982 of the Lahore High Court; whereby Ziaul Haq and Abdul Waheed respondents Nos. 1 and 2 were allowed bail in a case of murder and attempted murder.
The said respondents and several other accused including one Safdar are involved in a murder case which was registered on 18-7-1980. The exact date of the arrest of the two respondents is not known to either of the learned counsel but the learned counsel for the appellant has argued the case on the assumption that they might have been arrested on or around 18-7-1980.
2. It is a classic case of indiscriminate filing of the applications for t bail in the same murder case on behalf of the same accused persons. A learned Sessions Judge refused bail on 27-11-80; but, on 7-3-1981 the respondents were allowed bail by the same Court. On an application for conciliation thereof, a learned Single Judge in the High Court cancelled the bail on 26-5-1981 on consideration of merits. Leave to appeal petition (Cr. I Peti--petition for 1-esve to Appeal No. 274 of 1981) filed on behalf of the respondents in this Court was dismissed on 5-9-1981. It was noted that they had 1 been attributed fire-arm injuries suffered by Javed and Amin P. Ws. It many be also noted here that Safdar accused in an earlier independent proceeding, had approached this Court. He was allowed bail on 20-12-1980 (as noted in the order dated 5-9-1981) on the ground that there was prima facile no medical evidence with regard to the injuries attributed to him. The argument raised on behalf of the respondents before this Court in the earlier proceedings that Safdar had been allowed bail was repelled on consideration of merits of the allegation against all of them. Notwithstanding the fact their petition for leave to appeal had been dismissed by this Court: after cancellation of their bail by the High Court, again an application was moved on their behalf before the Sessions Court on the grounds reparable to merits which was dismissed on 12-11-1931. Abdul Waheed respondent then moved a petition for bail in the High Court again on merits which was dismissed by a learned Single Judge of the High Court on 15-12-11981. Notwithstanding this dismissal, Abdul Waheed made another petitions for bail in the High Court within 12 days of the last mentioned order f the High Court. Ziaul Haq also filed a separate application on the" same: day. It is not understood as to why two separate applications were drafted] and filed by the sauce learned counsel for two different accused in the same case on the same dory. This, however, is clear that he had substituted the counsel who had earlier appeared for these accused. The learned Judge in the High Court on 1-3- 1982 allowed bail to both the respondents on the following grounds :-
(i) That although the respondents were in custody for about 15 months, the report submitted by the learned trial Judge indicated that the trial would not commence until after two years, therefore, they are entitled to bail under 3rd Proviso to section 497(1), Cr. P. C.
(ii) It was also noted by the learned Judge that this concession of bail (which was considered statutory) could not be denied to the respondents because the injuries attributed to them were not such on account of which the statutory relief could be withheld.
Thus the respondents were released on ground of delay of 15 months with the additional consideration that the injuries attributed to them were; not enough to deny them the concession of bail.
3. Petition for leave to appeal having been moved from complainant's side, leave was granted by this Court on 14-6-1982 to consider the following questions : -
(a) Whether the learned Single Judge in the High Court was competent to grant bail to the respondents Nos. I and 2 on consideration of merits, when the Supreme Court had earlier refused bail tog the respondents after consideration of the same merits.
(b) Whether the respondents' plea of bail before the High Court on ground of delay was covered under the relevant proviso to sub, section (1) of section 497, Cr. P. G.
(c) If not, whether the respondents could be allowed bail on ground of delay as general consideration independent of the statutory provision in this behalf.
4. Learned counsel for the appellants has reiterated the arguments which are noted in the afore- noted questions. Learned counsel for the respondents was unable to raise any argument in connection with the legal position underlying the first question. Namely, that if the Supreme Court refuses to grant bail to an accused person on consideration of merits, neither the High Court nor for that matter any lower Court has the Juris--diction to grant bail on merits unless the Supreme Court, has while refusing bail on merits left a scope for re-consideration thereof. In this case, the order passed by this Court on 5-9-1981 dealt with the question of injuries attributed to the respondents. They were alleged to have injured P. Ws. Amin and Javed and not the deceased who was fired at, by a different accused.
5. The strength of the prosecution case vis-a-vis the allegation against the accused could not be made 'the basis of afresh bail application and grant of bail by the Sessions Court or the High Court.
In that context the first question posed above is answered in the negative. Applying this principle to the present case the order passed by the learned Judge in the High Court; which is tile subject- matter of this appeal, insofar alt is assumed that "the injuries attributed to them (respondents 1-) also do not call for the denial of this concession at this stage", on plain reading, in view of earlier consideration of the merits of the case by the Supreme Court is not only without any justification but also without jurisdiction and we hold accordingly.
6. There is no direct authority from any of the superior Courts on the second and third questions.
Section 497 (1) reads as follows :- "497. When bail may be taken in case of non-bailable offence.-(1) When any person accused of any non-bailable offence is arrested or detained without warrant by an officer incharge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that lie has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years: Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail: Provided further that a person accused of an offence as aforesaid shall not be released on bail unless the prosecution has been given notice to show cause why he should not be so released : Provided further that the Court shall, except where it is of opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf, direct that any person shall be released on bail:
(a) Who, being accused of any offence not punishable with death, has been detained for such offence for a continuous period exceed--ing one year and whose trial for such offence has not concluded; or
(b) Who, being accused of an offence punishable with death, has been detained for such offence for a continuous period exceeding two years and whose trial for such offence has not concluded.
7. The offence punishable with death admittedly would be covered by sub-clause (b) of third proviso to section 497, Cr. P. C. Some conditions must be satisfied before the said clause is attracted-
(i) that the accused must have been detained for such offence for a period exceeding two years, and
(ti) the said period of two years must be continuous. (These two conditions are in addition to another condition, namely).
(iii) that the delay must not be due to an act or omission of the accused or any person acting on his behalf.
8. This difficulty having been realised by the learned counsel for the respondents, he tried to face the same by advancing an argument, which to say the least is ingenuous. According to him, the ground of delay even after its codification by way of an amendment in section 497, Cr. P. C.
Remains a general consideration for grant of bail in the cases covered by the prohibitions contained in subsection (1) of section 497, Cr. P. C. And the period of two years in sub-clause (b) or one year in sub-clause (a) is only indicative of a guideline. In other words, according to him, it is in the discretion of the Court to grant bail on ground of delay and the period of delay which has already occurred is not the only determining factor. The said delay as also the expected delay would control the discretion of the Court. This interpretation, it needs to be pointed out, would be further violative of the language of the statute as also the intention underlying the same.
9. 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 Legis--lature intervened and the law was made more certain. . One of the changes affected in the statute from the previous practice in the 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 warned 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 fist proviso the word `may' has with a ' for the `word' `shall' in third repel the argument of the learned counsel and hold that word `shall' in, third proviso will have to be read in its ordinary sense. That being so, there is noshing in the entire proviso, its main part as also sub-clause (b) to show the grant of bail on ground of delay in cases covered there under 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 dis--cretion of the Court it is empowered to take into account the expected apprehended delay.
10. In this case admittedly, the period of detention of the accused respondents Nos. 1 and 2 was less than two years they were not, therefore, entitled to the grant of bail under third proviso to section 497 (1), Cr. P, C. Read with 498, Cr. P. C.
11. Another argument advanced by the learned counsel; namely, that even if it is mandatory under the third proviso to section 497 (1), Cr. P. C. For the accused to complete two years continuous period of detention before seeking bail on ground of delay, residuary power with the Courts concerned to grant bail on so-called general delay even if it is less than the specified period, remains intact, is also without any force. The legislative intervention has consolidated and codified the law which earlier prevailed with regard to the grant of bail on ground of delay in cases specified in third proviso to section 497, Cr. P. C. The matter is so obvious that no discussion is necessary in this behalf. In the cases primarily covered by the third proviso, bail cannot be granted on ground of delay unless the conditions specified thereunder, as discussed and explained above, are satisfied.
12. The law as amended has not been correctly applied by the High Court -in this case. The period of detention being less than two years and the offence punishable with death, the High Court had no jurisdiction to grant, bail on ground of delay muchless on ground of apprehended delay. We accordingly set aside the impugned judgment.
The bail granted to respondents Nos. 1 and 2 was accordingly cancelled by a short order earlier passed on the date of hearing of this appeal whereupon the respondents were directed to surrender to the proper custody within a week of the said date i.e. 14-6-1982.