1. ZAFFAR HUSSAIN MIRZA, J.-Leave was granted in this case, on 28-6-1982, to consider the following questions :-
(i) Whether in a case, otherwise covered (on merits) by the prohibitions contained in subsection (1) of section 497, Cr. P. . C. Can bail be granted to an accused person if the offence is punishable with death, on ground of delay when the period of two, years , has not yet expired.
(ii) -After the enactment of amendment /proviso in section. 497/(1) wherein the period of delay has been specified, is it open to a Court to grant bail on ground of delay when admittedly statutory period has not expired, due to other considerations which were not found enough to form an independent ground for bail.
(iii) Whether it was not mandatory for the High Court while granting bail to the respondent on ground of delay under section 497 (1), Cr. P. C. To consider the question/assertion raised from State/ complainant's' side that the delay was caused by the accused.
2. The facts are that Ishaq respondent No. 2 alongwith others is being tried on a charge of murder and grievous hurt under section 302/324/34, P. P. C. In the Court of Additional Sessions Judge, Karachi. Ishaq was taken into custody on 22-8-1980. Appellant's plea for being enlarged on bail was initially rejected by the Additional Sessions Judge, Karachi, and he also failed to secure bail from the High Court of Sind, although three co-accused with him were granted bail.
3. Thereafter the evidence of two prosecution witnesses, namely, appellant Saleh Muhammad and Abubakar was recorded by the trial Court and after that, respondent Ishaq repeated his request for bail before the trial Court, but once again his prayer was declined on merits. The matter was again taken to the High Court and by the impugned order dated 27-5-1982, a learned Single Judge of that Court allowed bail to the respondent. The appellant who is the first informant in the case is aggrieved by this order, hence this appeal.
4. The grounds on which the learned Judge passed his order may best be reproduced in his own words :- "I have carefully considered the above submissions made by the learned Advocates before me. I find that the appellant was arrested on 22nd August, 1980 and so far only two prosecution witnesses have been examined and there is no likelihood of examination of further prosecu-- petition witnesses till August, 1982 as Presiding Officer proceeded on training. In view of this, the case cited by the learned Advocate for the applicant reported in 1978 P Cr. L J 589 would be applicable to the present case. I also find that there exists an enmity between the parties and consequently certain criminal cases are pending against them inter se. In view of all these facts, I would allow the above bail application and direct that the applicant be released on bail, on his furnishing surety in the sum of Rs. 30,000. (Thirty thousand) with P. R. Bond in the like amount to the satisfaction of the Sessions Judge, Karachi."
5. It will be observed that the request of the respondent for bail was once rejected on merits by the first order of the High Court, dated 14-10-1980 and normally, unless the repeated request was made on grounds, other than those available at the time of the first application, no fresh application on merits could not be entertained by the High Court. However, the perusal of the impugned order shows that the decisive consideration for grant of bail was question of delay in concluding the trial.
6. Now the third proviso to the amended section 497, Cr. P. C., extends to an accused person, the right to be released on bail, if (in case of an offence punishable with death) he "has been detained" for a continuous period exceeding two years and his trial for such offence has not concluded, provided the delay in the trial has not been occasioned by an act or omission on his part. In this case there is no dispute that, the respondent having been in detention since 22-8-1980, on the date of the impugned order, i.e. 27-5-1982, the statutory period of two years had not elapsed. Clearly, therefore, the order of the High Court was violative of the mandatory provisions of law above referred to and the order was passed without jurisdiction.
7. It was, however, contended on behalf of the second respondent, that since the Presiding Officer of the trial Court had proceeded on leave and was not expected to resume, before the expiry of the statutory period required, there was no lack of jurisdiction in the High Court to take into account such future inevitable delay for purpose of application of the third proviso to section 497, Cr. P. C. It was further submitted that the delay as ground for grant of bail having been already a recognised consideration in law for the exercise of discretion under section 497, Cr. P. C., it remained intact, notwithstanding the insertion of the aforesaid third proviso to subsection (1) of section 497, Cr. P. C., which has granted an additional right to the accused, and cannot be held to have been wiped off in consequence of the amendment.
8. 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 (Nazir Hussain v. Ziaul Hay, etc.). On the first point it was held to 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 detained . . . . . . . . . For a continuous period exceeding two years". Obviously future apprehended delay 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."
9. 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 to 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 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 learned counsel that the use of the word `shall' the third proviso, is in the meaning of `may'. Learned counsel failed to notice that while in the first proviso the word `may' ha 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."
10. There is, therefore, no force in the submission of the learned counsel for the 6econd 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.
11. Learned counsel for the respondent finally urged that the impugned order does not proceed solely on the basis of delay but one of the considerations that prevailed with the learned Judge was a question on merits and therefore, the order can be sustained. In this behalf he referred to an observation made in the order in the following words :- "I also find that there exists an enmity between the parties and consequently certain criminal cases are pending against them inter se."
12. However, on a reading of the order as a whole, we have no doubt in our mind, that the decisive consideration for passing the order was the question of delay, and this is further re-informed from the fact that the learned Judge could not take into consideration the merits of the case which had already been taken into account and the application for bail dismissed by the High Court earlier.
13. For the foregoing reasons, this appeal is allowed and the order of the High Court, dated 27-5-1982, is set aside and the bail allowed to respondent Ishaq is cancelled. Non-bailable warrants returnable to the District Magistrate concerned shall be issued. It may be clarified that, if the respondent is otherwise, entitled to the benefit conferred by the third proviso to section 497, Cr. P. C., the fact of the interruption in the continuous detention for the requisite period on account of the impugned order shall not be taken into account and the period already spent by him under detention shall be computed in continuity with his subsequent detention as a result of the decision in this appeal.