1. On 15-9-1984 A.S.I. Faiz Muhammad Niazi of Korangi, P.S. While patrolling in his area hauled up applicant Amir Hyder alias Abbas Ali. On his personal search 60 grams of Heroin was recovered from his possession. The applicant is in custody since then and is awaiting his trial before Vth Additional Sessions Judge, Karachi.
2. Earlier two bail applications were moved by the applicant before this Court which were dismissed on merits by my learned brothers Mr. Justice Fakhruddin and Mr. Justice Thahim respectively.
3. This application has been pressed on two grounds. Firstly that there is delay in proceeding with the case to an extent that it has amounted to abuse of process of law.
4. Applicant's counsel Mr. K.M. Nadeem has cited 1983 SCMR 790 in support of the above ground where a delay of 8 months in proceeding with the case was taken into consideration by the Supreme Court and bail was granted.
5. This ground has however not appealed to me because the latter view of the Supreme Court is, different. It is expressed in Ismail's case (Cr.P.S.L.A. No. K-79 of 1983) which was decided on 6-10 1983. The judgment was written by Mr. Justice Zafar Hussain Mirza, in which the dictum laid down in Saleh Muhammad's case reported in 1983 SCM R 341 was reiterated. So also in Saleh Muhammad's case itself. It was clearly held in both these cases that the ground of delay for grant of bail in cases falling within the prohibition contained in subsection (1) of section 497 of Cr.P.C. Is now governed by the IIIrd proviso to that section and after the amendments effected in the section no discretion vests in the Court in a general way for the grant of bail on the ground of delay.
6. Mr. K.M. Nadeem tried to distinguish these two rulings of the Supreme Court on the ground that they relate to the delay in "conclusion" of trial while what he is pressing in the present case is that there is delay in "proceeding with" the trial which has amounted to abuse of process of law. I do not feel myself in agreement with the line of distinction attempted to be drawn by the learned counsel for the applicant. According to me the delay in "proceeding with" the trial as well as delay in "conclusion" of trial are one and the same thing. A Hence he is not entitled to the grant of bail, in view of the latest law laid down by the Supreme Court in the above two rulings.
7. The other ground on which he has requested for the bail is that while deciding a third bail application in this case a period of three Months was fixed by my learned brother M. Justice Sajjad Ali Shah, for the conclusion of trial by the trial Court' which has expired on 21-7-1985, but the case has not even proceeded as yet. Relying upon 1983 PCr.LJ 197 he has submitted that in view of the disregard of High Court's orders by the trial Court applicant be enlarged on tail. With this submission of the applicant's counsel also I do not feel myself to he in agreement. Each case is to be decided on its own merits. The copies of diaries produced by the applicant slow that the trial Court is making sincere efforts to dispose of the case expeditiously and there is no dereliction on its part. Moreover tire non-compliance of the direction of the Court, which was not unjustified, does not give power to the high Court to exercise a jurisdiction which does not vest in it. The Courts have, therefore, no power to enlarge an accused on bail on the ground of delay before the completion of statutory period provided in IIIrd proviso to section 497, Cr.P.C.
8. I, therefore, dismiss the bail application for the present. However I direct that the trial Court will also be at liberty to consider the bail application of the applicant on the ground of delay after the expiry of period of one year i.e. After 16-9-1985.