KHALIL UZ ZAMAN AND Another vs The STATE
This petition for leave to appeal was filed against an order of the Lahore High Court, which refused to grant post-arrest bail to the petitioners facing trial for offences under sections 302, 366, and 452 read with section 34 of the Pakistan Penal Code 1860. The core legal question was whether the petitioners were entitled to bail due to the delay in the trial proceedings and whether an affidavit claiming the alleged victim was the wife of the first petitioner constituted sufficient grounds for bail. The Supreme Court dismissed the petition, holding that the High Court exercised its discretion lawfully in refusing bail. The Court determined that the delay in trial was not sufficient to warrant bail, particularly given the State's assurance that the case would be heard within eight to nine months due to the appointment of additional judges. The key principle laid down is that the grant of bail on the ground of delay is a matter of judicial discretion, and the appellate court will not interfere unless the lower court acted illegally in exercising that discretion.
- Is the refusal of bail by a High Court on the ground of delay in trial a matter of judicial discretion?
- Can an appellate court interfere with the refusal of bail if the lower court has not acted illegally?
- Does the availability of a new affidavit regarding the marital status of the victim provide sufficient grounds for a fresh bail application in the High Court?
- Section 302, Pakistan Penal Code 1860
- Section 366, Pakistan Penal Code 1860
- Section 452, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ORDER
1. DORAB PATEL, J.-This petition for leave has been filed against an order of the Lahore High Court by which a learned Judge of the High Court refused to grant bail to the petitioners, pending their trial under sec--petition 302/366/452 read with section 34 of the Penal Code. The occurrence took place in Rawalpindi on 19-1-1976 and according to the prosecution, the petitioners and one absconder Sher Baz had come to the house of Mst. Safia Sultana and kidnapped her sister, Mst.
2. Ruqia Sultana. One Mushtaq Ahmad tried to come to the rescue of Mst. Ruqia Sultana but he was shot dead by Sher Baz. The two petitioners before us then took Mst. Ruqia Sultana away with them in a truck which was waiting. The petitioners and the other accused were arrested in due course and had applied for bail more than two years ago. According to Mr. Zafar Mahmood, their case in this application was that the entire prosecution case was false, and in this connection, one of pleas advanced was that Mst. Ruqia Sultana was the wife of the first petitioner. Presumably, therefore, there was no question of kidnapping her as she was living with the first petitioner, therefore, the entire prosecution was a fabrication. Unfortunately, these pleas, which were pressed both in Sessions Court and in the High Court, failed, and it is sufficient to observe here that the Lahore High Court had dismissed the bail application of the petitioners as far back as 29-4-1976. Then sometimes in the course of this year, the petitioners and Gulshan, a co-accused, with them, again applied for bail in the Lahore High Court and bail was sought, inter alia, on the ground of delay in the hearing of the case. The learned Judge, who heard this application observed that the role attributed to Gulshan, the co-accused, was that he was waiting outside the house of Mst. Safia Sultana with his truck, therefore, as the role attributed to this accused was comparatively minor role, the learned Judge allowed his application for bail in view of the intimation given to him by the Sessions Court that the case would not be heard for another two years. But the learned Judge rejected the prayer for bail by the two petitioners and observed that the pleas advanced by them on merits had been rejected on 29-4-1976, and that he did not "consider their case to be deserving of bail simply on the ground of delay". Hence this petition for leave.
3. The question whether the petitioners were entitled to bail on the ground of delay was within the discretion of the Court and in the circumstance of the case it could not be said that the High Court had acted illegally it, refusing bail to the petitioners. Additionally, the learned Assistant Advocate-- -General stated that the case was likely to be heard within eight or nine months because the Government had very recently appointed two Additional Sessions Judges in the Sessions Court, Rawalpindi. In the circumstances Mr. Zafar Mahmood's apprehension of gross delay in hearing of the case would also not appear to be justified.
4. Mr: Zafar Mahmood, however, also pressed for bail on merits, but in view of the order, we are passing, we would not make any observations on the submissions of the learned counsel, except to point out that he relied on an affidavit by Mst. Ruqia Sultana that she was the first petitioner's wife and that she had always been living with her husband. Further, as pointed out by learned counsel this affidavit was not available when the High Court had dismissed on 29-4-1976, the first bail application of the petitioners. But, according to the learned Assistant Advocate-General, this affidavit must have been available when the order under appeal was passed, therefore, the further submission was that this affidavit did not constitute any fresh grounds which would entitle the petitioners to bail. As Mr. Zafar Mahmood did not know whether this affidavit had been placed before the High Court when the learned Judge passed the order under appeal, we would only observe that if the affidavit was not available when the impugned order was passed, the petitioners would be free to apply for bail again in the High Court. With these observations, the petition is dismissed.