1. The present 8 applicants alongwith 10 others are booked in connection with a murder charge. The request for bail for the present applicants has been refused thrice by this Court. After the bail was refused to the applicants for the second time, the matter was taken before the Supreme Court alongwith some other co-accused and as a result of the objection raised by the learned Advocate-General, the leave petition was not pressed so far as the present applicants are concerned. In the last order dated 28-2-1977 passed by this Court, a direction was made that the trial of the case be expedited.
2. Thereafter upon being moved afresh for bail the learned Sessions Judge, Sanghar rejected the request by his order dated 2Q-7-1977 on the ground that the trial could not be commenced due to the fact that the Court of Additional Sessions Judge, Sanghar on whose file the case is at present pending, has been lying vacant without the Presiding Officer and it was expected that the new incumbent will soon be posted who will give preference to the present case.
3. The learned counsel appearing for the applicants seeks to re-agitate questions of merit involved in the case. He submits that there are counter cases pending in regard to the occurrence in question and that there is no evidence against the present applicants to implicate them as true culprits.
4. However, in view of the fact that the case of the applicants has already been considered on the merits, it is not open to the applicants to urge any sue ground in the present application.
5. Learned counsel then strenuously urged the ground of delay in commencing the trial of the applicants. In this behalf it was submitted that despite the order passed by this Court, the prosecution has failed to put the applicants to trial. Learned counsel has relied upon several decisions in support of his submission that delay in holding the trial has been considered a sufficient ground for grant of bail even when the delay involved was of four months to one year.
6. The learned Assistant Advocate-General has opposed the application and has invited my attention to tire latest pronounce--ment of their Lordships of the Supreme Court on the question of delay as a ground for grant of bail in the case of Barkhurdar v. Liaquat A.I PLD 1977 SC 434. In this case their Lordships followed the rule laid down in a previous decision of the Supreme Court reported in 1973 SCMR 212 where it was held that mere delay by itself is not a sufficient ground for granting bail ; however, if the, delay is so inordinate or so scandalous or so shocking as to amount clearly to abuse of the process of law there can be no reason either in principle or law as to why it cannot be treated as a sufficient ground for granting of bail. Their Lordships further noticed, in this case the excessive pile-up of cases before the Courts of Sessions on account of obligation of the commitment proceedings. The test laid down by their Lordships to measure whether the delay is sufficient for purpose of bail was to see if the, delay could be sufficient for quashing a criminal proceeding. In applying these principles, the question of delay cannot be considered in a void, but must of necessity be considered in the context of the facts and circumstances of each case. It would further appear that the extent of the delay should be of a degree which can be termed as scandalous or shocking, Having regard to the unprecedented circumstances which have resulted in swelling the pending file of the trial Courts on account of procedural amendments, which is expected to be a temporary phenomenon, it cannot be said that the delay of 18 months in the present case can by any stretch be termed as inordinate, scandalous or shocking. Additionally the expectation of the learned Sessions Judge that the posting of the nee- incumbent is likely soon to take place cannot be overlooked. Learned counsel upon being questioned. Is unable to state whether by now an Additional Sessions Judge has been posted for the Court in question.