' CHAUDHARY MUHAMMAD TAJ, J.--- This appeal has been filed to challenge the judgment and order passed by the Shariat Court of Azad Jammu and Kashmir on 12-7-2002 whereby the bail was allowed to respondent No, 1.
2. The facts are that a case under sections 302/34, 109/114, A.P.C. Stands challaned before the District Court of Criminal Jurisdiction Pallandri against accused-respondent No,1 and four other accused persons (not before the Court). Accused-respondent Nisar Ahmad Khan moved a bail application under the 3rd proviso of subsection (1) of section 497, Cr.P.C. On the ground of statutory delay before the trial Court which was dismissed. It was held that the said accused was a hardened and desperate criminal. The order was upheld by the Shariat Court. Feeling aggrieved the order of the Shariat Court was challenged through an appeal before this Court which was also disallowed and the orders passed by the Courts below were maintained. However, this Court directed the trial Court to complete the trial within six months failing to do so the accused- respondent could renew his bail application on the ground of delay of trial. The trial was not completed within the period determined therefore, another bail application was moved which was also rejected by the trial Court. An appeal on behalf of the accused-respondent was preferred before the Shariat Court which was accepted and the Bail was allowed on the ground of delay. The aforesaid order is challenged through the instant appeal.
3. Sardar Abdul Hamid Khan, the learned counsel representing the appellant, raised the following points in support of the appeal:--
(1) that a very strong prima facie case existed against the accused-respondent which was registered on the report of Javed Akhtar who after receiving four fire-arm shots succumbed to the injuries. The prosecution story was supported by the eye-witnesses and other incriminating material collected by the prosecution which included the recovery, medical evidence, etc.;
(2) that the accused-respondent's bail in the first round of statutory delay under proviso (iii) of subsection (1) of section 497, Cr.P.C. Was refused by the trial Court where it was held that the accused-respondent was a hardened and desperate criminal as such was disentitled for the grant of bail. The aforesaid order was upheld by the Shariat Court and this Court;
(3) that the accused-respondent in the second round also moved a bail application before the trial Court which was also disallowed. However, on a revision petition filed before the Shariat Court the bail was granted. The order was illegal for the following grounds:--
(a) that the learned Judge in the Shariat Court granted bail keeping in view the direction of completion of trial within six months by this Court which, according to him, entitled the accused for grant of bail. The order is patently illegal and against the accepted principles of law established by the superior Courts. It was explained that there was no delay whatsoever.. The delay per se was never recognized a ground for grant of bail;
(b) that the learned Judge in the Shariat Court failed to appreciate this aspect of the case that the accused-respondent who was held disentitled even on the ground of statutory delay, a right given by the Legislature, could not be enlarged on bail on artificial ground of delay which in fact was not there; and
(c) that the Shariat Court did not appreciate the direction of this Court in its true perspective, that could not be meant for giving undue advantage to the accused which otherwise was not permissible in law.
4. Mr. Abdul Rashid Abbasi, the learned counsel for respondent No,1, opposed the contentions of the learned counsel for the appellant on the following grounds:--
(1) That in view of the circumstances of the case this Court through an order passed on 31-7-2001 though declined the bail on statutory delay but directed the trial Court to complete the trial positively within six months. It was also held that failing to complete the trial would entitle the accused-respondent to renew his bail application on the ground of delay;
(2) that the prosecution in spite of a clear direction not only failed to complete the trial but unnecessarily delayed the proceedings which amounted to inordinate delay that entitled the accused-respondent for grant of bail; and
(3) that the Shariat Court taking into consideration the delay caused by the trial Court against the direction of this Court amounting to inordinate delay, allowed the concession of bail which.Was the spirit of the order passed by this Court. The learned counsel referred to the following authorities in support of his assertions:--
(1) Khan Muhammad and others v. The State 1993 SCM R 65, Miskeen Shah v. The State 1990 PCr.LJ 60 (3) Mumtaz and 13 others v. The State 1992 PCr.LJ 2325.
5. Raja Ibrar Hussain, the learned Advocate-General who appeared on behalf of the State supported and adapted the arguments of the learned counsel for the appellant.
6. We have heard the arguments of the learned counsel for the parties and also gone through the record. The case registered at the instance of the injured person was challaned before the District Court of 'Criminal Jurisdiction, Pallandri under the offences of sections 302/34, 109/114, A.P.C. The accused-respondent No,1 in the first round moved for his bail on the ground of statutory delay under 3rd proviso of subsection (1) of section 497, Cr.P.C. Before the trial Court which was declined under 4th proviso of subsection (1) of section 497, Cr.P.C. On 28-2-2001. It was held that the accused was a hardened, desperate and dangerous criminal as such was not entitled to the concession of bail. The order was assailed in a revision petition before the Shariat Court which was dismissed on 18-5-2001. The accused-respondent through a further appeal challenged the order before this Court where the order passed by the Shariat Court was upheld vide order, dated 31-7- 2001.
7. Before adverting to the controversy it would be necessary to give precise case of the prosecution. An F.I.R. As said earlier, was lodged by the injured person on 6-12-1998 under sections 324, 109/114, A.P.C. Which on his death the offences were altered as under sections 302/34 and 109/114, A.P.C. It was alleged that the complainant had some dispute with the accused party over a piece of land. On the aforesaid day when the complainant was going to participate in the Chehlum of Muhammad Riaz accused Arshad and Nisar Ahmad (respondent No,1) armed with kalashnikovs and .30 bore pistol attacked him. It was further stated that Nisar Ahmad accused with the intention to kill started firing from his .30 bore pistol which hit him on the left side of belly, the right side of abdomen, on the right thigh and the right shin. The incident took place on the instigation of other accused named in the F.I.R. According to the investigation 22 witnesses were cited which included 8 eye-witnesses, the recovery witnesses, doctor witness and other witnesses in respect of incriminating material. Five accused including respondent No,1 were challaned.
8. To appreciate the proposition it would be much relevant to see as to what direction was issued by this Court to the trial Court while declining the bail to the accused-respondent under proviso
(iv) of subsection (1) of section 497, Cr.P.C. The relevant observations are reproduced:- ' In our view the Courts below have not committed any error while refusing bail to him on the ground that he was desperate and dangerous criminal We keeping in view, the facts of the case allow a further period of six months to the prosecution to complete the trial. The trial Court shall take this case out of its turn so that trial is completed within this period. If trial is not completed with the time fixed by us the appellant shall be entitled to renew his prayer for bail on the ground of delay of trial."
9. Before analysing the order passed by the Shariat Court, impugned herein, it would be necessary to see as to what is meant by delay which entitles to the accused for grant of bail as a recognized ground. It is a settled proposition of law that delay per se is no ground for grant of bail. However, an inordinate delay amounting to abuse of the process of the Court or a scandalous delay has been held a valid ground for grant of bail. Reference may be made to a case reported as Karamat Ali v.
The State and another 1979 SCM R 438 where the following observations were made:- "The learned Auditional Advocate-General has pointed out that in fact there are now three Sessions Judges at Kasur and the plea that the trial will not take place for another three years is not well-founded. Moreover, delay per se is not a good ground on which bail can be allowed.
' We are inclined to agree with the submissions of the learned Additional Advocate-General that delay per se is not a good ground on which bail can be allowed. The delay, to constitute a ground for bail, must be unconscionable, amounting to an abuse of the process of the Court, which is not the case here. We do not, therefore, think that the petitioner is entitled to the grant of bail at this stage. He can, however, move the High Court in case the delay, if any, caused in the disposal of the case, becomes unconscionable."
' In a case reported as Muhammad Nawaz v. The State 1968 SCM R 683 the inordinate delay was also not considered a ground for the grant of bail. The relevant portion of the judgment is reproduced:-- "Learned counsel contends that this was not a proper ground for refusing bail. But we are unable to agree, for the High Court was bound to decide the bail applications in the light of the principles laid down by this Court in the case of Muhammad Aslam v. The State PLD 1967 SC 539. Under those principles the mere fact that there has been inordinate delay in the disposal of a criminal case, is not in itself a ground for granting bail to persons accused of having committed offences punishable with death or transportation for life, under section 302/34, P.P.C."
' The proposition-also came under consideration in a case reported as Anwar Khan v. The State 1978 SCM R 314 where it was resolved as follows:-- "Mr. Shahid Hussain Qadri, learned counsel for the petitioner, has urged that the plea of self- defence should be considered at this stage. According to him, the aggressor party was of the ' deceased, and, therefore, the petitioner should be released on bail. The learned counsel referred to a decision of the Lahore High Court given by the learned Chief Justice in 1990 PCr.LJ 929 and contended that in this case the plea of self-defence was taken into consideration. In our opinion this contention is not well-founded. Without any evidence on the record it is not possible to raise any prima facie case in favor of the petitioner. This contention, therefore, fails.
' It was next contended by the learned counsel for the petitioner that there was a delay of about 3 years and, therefore, the petitioner should be released on this ground. In our opinion, mere delay is no ground to grant bail. Under the present law, the committal proceedings have been abolished and murder cases are to be tried by the Sessions Judge. There would be thus large number of case pending in the Court and delay in these cases is likely to occur. In these circumstances, if accused persons are released on bail on this ground, it will have bad repercussions on the public. In spite of this, we would, direct the trial Court to expedite the disposal of the case."
' In another case reported as Ahrar Muhammad and others v. The State PLD 1974 SC 224 the proposition was elaborately discussed and it was resolved as to which delay amounted to abuse of the process of law and the same could be taken into account as a relevant ground for grant of bail. It was held that if the delay is so inordinate or so scandalous or so shocking that can be treated as a sufficient ground for grant of bail. The resolution was made in the following words:-- "It is true that the view of this Court has consistently been that mere delay by itself is not a sufficient ground for the granting of bail; but, at the same time, it cannot be said that inordinate or unjustified delay in the prosecution of a case amounting to an abuse of process of law can never be taken into account as relevant ground for the granting of bail. If the delay is so inordinate or so scandalous or so shocking as to amount clearly to an abuse of the process of law there can be no reason either in principle or in law as to why it cannot be treated as a sufficient ground for the granting of bail. If such delay can be sufficient for quashing criminal proceedings, then it can also be an equally good ground for the granting of bail.
' We are reluctant to interfere in matter of bail; but, in a case of this kind which, as observed earlier, is the most scandalous that has come to our notice, we cannot possibly shut our eyes and encourages the perpetration of such a flagrant abuse of the process of law, in spite of the repeated warnings of the High Court and its specific directions for completing the hearing at an early date.
' We have also carefully examined the order-sheets filed by the learned counsel for the State but are unable to agree with him that the conduct of the defence has been equally reprehensible in this case. By far the majority of the adjournments are not due to any fault of the defence. The responsibility for them lies either on the prosecution or the Court, which we regret to say, has displayed a degree of laxity that can only be described as deplorable. We have not been able to resist the impression that it appeared ever willing to accept a request for adjournment.
' It is also a matter of great surprise to us that the High Court should have taken such a lenient view of the flagrant disregard of its directives by a subordinate Court. We cannot help feeling that perhaps the lenient attitude of the High Court itself encouraged the subordinate Court and prosecution in this case to drag on the proceedings in such a leisurely fashion for over three years now. We cannot allow such a state of affairs to continue and, therefore, we have come to the conclusion that, if ever there was a case, the present is one in which the delay has clearly amounted to an abuse of the processes of law and this entitles the appellants to be enlarged on bail, particularly, since the prosecution evidence has now been concluded and no question of tampering with the evidence can possibly now arise."
10. Mr. Abdul Rashid Abbasi, the learned counsel for respondent No,1, relied upon the authorities referred above, which do not lay down a different law as discussed above. The observations made in the said authorities are reproduced.
' In a case reported as Miskeen Shah v. The State 1990 PCr.LJ 60 from Karachi jurisdiction it was held:-- "5. Inordinate delay in disposal of a case amounting to abuse of the process of law, was considered as a ground for allowing bail to the accused even in a murder case, but this exercise was controlled by the discretion of the Court concerned. The third proviso to section 497, Cr.P.C. Made the ground of delay certain and the accused were extended concession of bail as of right, if the requirements of this proviso were satisfied...."
' The other case reported as Mumtaz and 13 others v. The State 1992 PCr.LJ 2325 lays down as under:-- ".. There is substance in the contention of the learned counsel for the applicants that the complainant is avoiding to have himself examined, by making applications, for adjournment for the last several months. From the progress of the case it can be observed that there is no likelihood of the case being finalized in the next two or three months. I had asked Mr. K.M. Nadeem, learned A.A.-G. Sindh, whether he could make a statement as to the time in which the trial will be finalized against the applicants, but he expressed his inability to make any statement in this regard obviously on account of the progress that has taken place in this case so far. Probably it may take one or two years before the trial is concluded. Two of the five applicants have now remained in custody for over five years, the other two for 4 years and Imamuddin is going to complete 4 years in the next few months. Relaying upon the decisions of the Supreme Court referred to above and also my previous decision in Sanam Shah's case, I am of the view that the five applicants are entitled to bail on the ground of inordinate and scandalous delay that has taken place in the trial and that in the circumstances of this case IVth proviso to subsection (1) of section 497, Cr.P.C. Does not come in the way of the applicants for the grant of concession of bail to them."
' The verdict given in a case reported as Khan Muhammad and another v. The State 1993 SCM R 65 is as follows:-- "3. It is submitted before us by the learned counsel for the petitioners that directing the trial Court to decide the case before 27-4-1992, failing which it shall release the petitioners on bail, amounts to withholding of bail for specific period which is a penalty uncalled for particularly, when there is a direction that petitioners would be released on bail if trial is not concluded by then. We find considerable merit in the contention of the learned counsel. High Court should have disposed of bail application on merits one way or the other. Since there is no order on merits on the bail application from the High Court, we set aside order dated 26-2-1992 passed by the High Court and remand bail application for hearing and disposal on merits by the High Court within shortest possible time."
11. Judging the facts involved in the present case on the criteria referred above, it would require whether any delay caused amounted to abuse of the process of law and a scandalous delay. A direction by this Court was issued through an order passed on 31-7-2001, thereafter, interim order, dated 30-8-2001 was passed by the trial Court. Accused Qayyum was not present. An application for his dispensation was moved. The witnesses were present; therefore, the case was adjourned for 29-9-2001. On the aforesaid date the trial Court adjourned the case due to heavy load of work and further adjourned the case for 3-11-2001. The case was further adjourned for 21-12-2001 as no witness was present due to the bad weather and raining. On the aforesaid date the evidence could not be recorded due to the absence of the defence counsel who after recording the order appeared but the prosecutor was not present, therefore, the case was adjourned for 18-1-2002. On the said date on the request of the prosecutor the evidence could not be recorded and the trial Court fixed further date for 19-2-2002 when an application on behalf of accused Arshad was moved for adjournment. The prosecution witness Arshad was also not present who was summoned for the next date.
12. A perusal of the interim orders recorded by the trial Court from 30-8-2001 to 19-2-2002 shows that the trial Court did not complete the trial within the period determined by this Court. We also find that there was a delay but we do not find that there was any inordinate delay caused as some of the adjournments were made on the behest of defence. It was no doubt required by the trial Court in view of the direction of this Court that it should have made efforts to complete the trial though it was little difficult keeping in view the long list of 22 prosecution witnesses. In a murder case even one witness consumes lot of time particularly an eyewitness. The fact cannot be overlooked that the trial of such a case becomes difficult to conclude within the period determined by this Court. At the time when direction was issued the aforesaid facts probably were not brought in the notice of this Court apart from the fact that during trial none of the parties either prosecution or defence appears to have brought in the notice of the trial Court. The defence not only failed to point out rather sought adjournments which also contributed towards the incompletion of the trial.
We are unable to hold that in the given circumstances there was a delay which could be termed as inordinate delay amounting to abuse of the process of law or a scandalous delay. Therefore, we have no hesitation in holding that the order passed by the Shariat Court was not in consonance with law particularly in the circumstances when the bail application of accused-respondent moved under 3rd proviso of subsection (1) of section 497, Cr.P.C. a right provided by the Legislature, was not accepted.
13. While considering a bail matter of an accused involved in a non-bailable offence, if there appear reasonable grounds for believing that he is guilty of an offence punishable with death or imprisonment for life, he shall not be released on bail unless the case is covered by any of the provisos under subsection (1) of section 497, Cr.P.C. To form an opinion, the Court has to look into F.I.R., the statements of the prosecution witnesses recorded under section 161, Cr.P.C. And the other incriminating material collected by the prosecution, including any plea of the accused. But if it appears to the Court at any stage of the investigation, inquiry on trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence but that there are sufficient grounds for further inquiry into his guilt, the accused shall be released on bail under subsection (2) of section 497, Cr.P.C.
14. In the present case the prosecution has cited 22 witnesses which include 8 eye-witnesses. The other witnesses related to collection of incriminating material which may include the recovery etc. And the medical evidence. Statements of most of the witnesses particularly the eye-witnesses have already been recorded. Though this Court to avoid any prejudice to either of the parties, does not enter into the detailed facts, but in view of the settled law that Court cannot decide a bail matter in vacuum as has been held in a case reported as Khalid Javed Gillan v. The State PLD 1978 SC 256. After going through the proposed evidence alongwith the evidence recorded in the Court, there appears a prima facie case against the accused-respondent. The accused-respondent has not urged any other ground except the delay.
15. As discussed above the judgment of the Shariat Court is not maintainable and the same is set aside by accepting the appeal. Consequently, the by the Shariat Court stands cancelled.
16. Before parting with the judgment, we would like to observe that the action of the District Court of Criminal Jurisdiction, Pallandri cannot be approved as it did not make efforts to act upon the direction of this Court. It was required on behalf of the Shariat Court to take appropriate action. We would like that the instant trial should be concluded expeditiously as a lot of time has already been consumed.
Bail cancelled.