The earlier petition for bail filed by the petitioners and their co-appellants, Muhammad Munir and Muhammad Nazir, was rejected vide order, dated 15th June, 1983.
2. Bail is being sought by the petitioners now, mainly on the ground of two years having passed since the filing of the appeal.
3. Learned counsel for the petitioners has contended that after the insertion of clause (c) of subsection (1-A) in section 426, Cr. P. C., no element of discretion has been left with the Court.
Learned counsel laid stress on the word 'shall' used in subsection (1-A) and contended that in view of this phraseology no option was left with the Court to refuse bail on a statutory period d having passed. Reliance has been placed on Liaqat Ali v. State .
4. I do not feel carried by the arguments of the learned counsel for the petitioners. It may be noted that after the word 'shall', the significant words used are 'unless for reasons to be recorded in writing'. This phraseology clearly is indicative of the fact that discretionary power of the appellate Court has not been taken away altogether for granting bail and A the Court still has the option to refuse bail in non-deserving cases after recording reasons.
The word 'shall' used in the clause has to be read in conjunction with the words 'unless for reasons to be recorded in writing'.
5. The facts of the cited case are different from the present case. In the cited case the petitioner who was granted bail, had although been sentenced to imprisonment for life but had been convicted under section 304, Part I, P. P. C. The learned Judges while recording facts have noted that the petitioner himself had suffered two injuries and his cousin Khalid had received 37 injuries on account of which he had died. The facts of the complainant party in the case having been1 found guilty under section 302, P. P. C. And three of them having been awarded imprisonment for life and their having already been admitted to bail by the Court, were also taken note of. The learned Judges have observed : "The contention of the learned counsel for the petitioner that from the other side three persons who have been found guilty under section 302/34, P. P. C. And sentenced to life imprisonment, have been allowed bail, is also a matter worth being taken into account."
6. After having gone through the judgment cited, it appears to me that the bail was not granted only on the ground of statutory period of two years having passed and the other factors not only weighed but have been specifically noted by the learned Judges.
7. In the case of Zulfiqar Muhammad Tufail v. State bail was not granted by the Supreme Court in spite of period of two years having already passed. It has been observed : "A perusal of the subsection relied upon by the learned counsel for the petitioners shows that bail is to be allowed in such cases if the appeal has not been disposed of within two years, but the same could. Be refused for the reasons to be recorded by the High Court."
Similar view has been expressed in Abdur Razzaq etc. v. State ,
8. In the present case the petitioners have been found to have caused specific injuries to the deceased and conviction under section 302, P. P. C. Is based on that finding. Keeping in view these facts I do not feel inclined to admit the petitioners to bail in spite of period of two years having been passed. The bail petition of the co-appellants on similar grounds has already been rejected.
9. For the reasons enumerated above, the petition stands dismissed. 1983 P Cr. L J 4 1981 SCM R 727 1983 SCM R 234