--S. 497--Bail cannot be claimed as a matter of right even if delay is not attributed to the accused.

 PLJ 2022 SC (Cr.C.) 167

Criminal Procedure Code, 1898 (V of 1898)--

----S. 497--Pakistan Penal Code, (XLV of 1860), Ss. 324/337-D/337 F(v)/429/148/149-- Bail, dismissal of--Delay in conclusion of trial--Applicant is specifically nominated in the crime with a specific allegation of causing fire arm injury at the shoulder near heart of the brother of the complainant--High Court in earlier petition directed the trial Court to conclude the trial within the period of 30 days--Report of trial Court reflects that delay in conclusion of the trial is mostly attribution to the applicant as he kept on moving numerous applications--Prosecution evidence is almost complete barring two investigating officers and doctor--Bail application is dismissed.          [Pp. 169 & 170] A, B, C & E

Criminal Procedure Code, 1898 (V of 1898)--

----S. 497--Bail cannot be claimed as a matter of right even if delay is not attributed to  the accused.    [P. 169] D

Mrs. Bushra Qamar, ASC for Applicant.

Danyal Ijaz Chadhar, ASC for Respondent No. 2.

Mirza Abid Majeed, D.P.G., ASI and DSP, Circle City Kasur for State.

Date of hearing: 2.2.2022.

 PLJ 2022 SC (Cr.C.) 167
[Appellate Jurisdiction]
Present: Sajjad Ali Shah, Sayyed Mazahar Ali Akbar Naqvi and Muhammad Ali Mazhar, JJ
Major (R) MUHAMMAD IFTIKHAR KHAN--Applicant
versus
STATE and another--Respondents
Crl. Misc. Appln. No. 1184 of 2021 in Crl. P. No. Nil of 2021,
decided on 2.2.2022.
(For entertaining the criminal petition)

Order

Sayyed Mazahar Ali Akbar Naqvi, J.--Through this application under Order XXXIII, Rule 6 of the Supreme Court Rules, 1980, the applicant has prayed that the Criminal Petition No. Nil of 2021 against the impugned order dated 26.04.2021 passed by the learned Lahore High Court, Lahore may be entertained, numbered and decided on its own merits.

2. Briefly stated the facts of the matter are that the applicant was involved in a criminal case bearing FIR No. 228/2019 dated 11.10.2019 under Sections 324/429/148/149/337-D/337-F(v), P.P.C. at Police Station Usman Wala, Kasur. The allegation against the applicant is that he along with his co-accused while armed with firearms launched murderous assault upon the complainant party. The applicant has been ascribed the role of inflicting fire shot which hit below left shoulder near heart of brother of the complainant. The applicant was arrested from the spot. The applicant's bail petitions on merits were dismissed twice by the learned Courts below. The applicant then filed bail petition on medial as also on statutory ground but the same did not find favour with the learned Courts below. Against the dismissal of his bail petition on statutory grounds by the learned High Court vide order dated 26.04.2021, the applicant had earlier filed Criminal Petition No. 547/2021 before this Court, which was disposed of vide order dated 10.06.2021 with a direction to the Trial Court to conclude the trial within a period of 30 days and in case the trial is not concluded within the stipulated period, the applicant was allowed to file his bail application before this Court afresh. Hence, this application.

3. Learned counsel for the applicant contended that the applicant is behind the bars for the last more than two years and despite direction of this Court dated 10.06.2021 to conclude the trial within a period of thirty days, the same has still not been concluded. Contends that the applicant cannot be held liable for the delay occasioned due to the prosecution or Police. Contends that the right provided to an accused under the law for his release on post-arrest bail due to non-conclusion of trial cannot be withheld while exercising the discretionary powers by a Court of law, therefore, the applicant deserves to be released on bail on statutory delay.

4. On the other hand, learned Law Officer assisted by learned counsel for the Respondent No. 2 contended that it is the applicant/ accused, who is responsible for the delay as he kept on moving different applications under different provisions of law and lingered on the matter before the Trial Court, therefore, he is not entitled to be released on the statutory ground.

5. We have heard learned counsel for the parties at some length and have perused the available record.

There is no denial to the fact that the applicant is specifically nominated in the crime report with a specific allegation of causing fire arm injury at the shoulder near heart of the brother of the complainant and he was arrested from the spot with the weapon of offence. A bare perusal of record clearly reflects that four bail petitions of the applicant, two on merits, one on medical ground and one on statutory ground have been dismissed up to the level of this Court. Against the dismissal of his bail petition on statutory grounds by the learned High Court vide order dated 26.04.2021, the applicant had earlier filed Criminal Petition No. 547/2021 before this Court, which was disposed of vide order dated 10.06.2021 with a direction to the Trial Court to conclude the trial within a period of 30 days and in case the trial is not concluded within this time, the applicant was allowed to file his bail application before this Court afresh. As the trial could not be concluded within the timeframe fixed by this Court, the applicant has filed the present application for entertaining the fresh criminal petition. A report from the learned Trial Court was also requisitioned about the day to day proceedings of the trial. The perusal of the report and the record clearly reflects that the delay in conclusion of the trial is mostly attributable to the applicant as he kept on moving numerous applications i.e. for acquittal under Section 249-A of, Cr.P.C., discharge, medical examination of injured, constitution of medical board for re­examination of the injured, stay of proceedings, summoning of roznamcha and original record of re-examination of injured etc, which have been taken note of by the learned High Court in the order dated 26.04.2021. This is settled that the bail cannot be claimed as a matter of right even if delay is not attributable to the accused. However, the same is not the case here. The report of the learned Trial Court clearly shows that the trial is being concluded by not only taking the matter almost on day to day basis but deciding the applications filed by the parties on almost daily basis. During the course of proceedings before this Court, it transpired that the prosecution evidence is almost complete barring two Investigating

Officers and the Doctor, who are yet to be examined. As bulk of the prosecution evidence including the ocular account has been recorded, any observation by this Court at this stage would certainly prejudice the case of either of the parties, which is against the numerous precedents of this Court. When it is established from the record that the delay has been occasioned due to number of applications filed by the applicant before lower Courts coupled with the fact that only three witnesses are left to be examined, we do not feel it appropriate to give any finding at this stage. Consequently, this application having no merit is dismissed. However, in the interest of safe administration of justice, the Trial Court is directed to conclude the trial expeditiously.

 (K.Q.B.)         Bail dismissed