PLJ 2023 Cr.C. 477
[Islamabad High Court, Islamabad]
Present: Arbab Muhammad Tahir, J.
ABBAS KHAN--Petitioner
versus
STATE and another--Respondents
Crl. Misc. No. 1392-B of 2022, decided on 16.11.2022.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Pakistan Penal Code, 1860, Ss. 392/411--Statutory ground--Post arrest bail--grant of--Petitioner is accused of commission of offence of robbery--Statutory right to be released on bail is, however, subject to two exception; one is embodied in the third proviso itself and the second is provided in the fourth proviso--Statutory ground of delay in conclusion of trial would be available to an accused--Delay in conclusion of trial is not occasioned by any of his act or omission or by any other person acting on his behalf--Continuous detention for more than a year without any material or even remote progress in conclusion of trial, bring his case within the remit of third proviso to section 497(1) Cr.P.C--Instant bail petition is allowed. [Pp. 479 & 480] A, B, C & D
2022 SCMR 1; 2022 YLR 1655; 2022 MLD 278; 2021 SCMR 1899 ref.
M/s. Ume Ruqiaya and Mr. Usman Nasir Khan, Advocates for Petitioner.
Mian Zain Qureshi, State Counsel for Respondents.
Date of hearing: 16.11.2022.
Order
This is second post-arrest bail petition by accused/petitioner namely (Abbas Khan) in FIR No. 288, dated 18.03.2021, under Section 392/411, PPC, Police Station Koral Islamabad.
2. It is significant to note that first post-arrest bail petition of the petitioner (Crl. Misc. 550-B/2022) preferred on merits was dismissed by this Court vide order dated 16.05.2022 by observing as under:-
“6-Record reveals that the petitioner was duly identified by the complainant during identification parade held on 06.8.2021. In addition, part recovery of the snatched amount of Rs. 1,000/-was also effected from his possession on 29.08.2021 while petitioner also pointed the place occurrence.
7-The offence under Section 392, PPC provides rigorous imprisonment for a term which may extend to ten years with fine and if the robbery is committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
8-The occurrence in this case had allegedly taken place on 18.03.2021 at about 08:00 p.m. near overhead Iron Bridge, Khanna Pull Express Highway, Islamabad, therefore; apparently, the offence alleged entails punishment which may be extended to fourteen years rigorous imprisonment.
9-Record further reveals that petitioner is also involved in following cases:-
S.No. | F.I.R No. | Police Station | Offence under Section |
1 | 383/2021 | P.S. Koral | 392/411, PPC |
2 | 592/2021 | P.S. Koral | 392/411, PPC |
3 | 655/2021 | P.S. Koral | 392/411, PPC |
4 | 666/2021 | P.S. Koral | 13/20/65 A.O. |
10. As mentioned above, the petitioner in involved in three other cases of like nature besides a case registered under the Arms Ordinance. It is significant to note that the cases pertain to a particular area falling within the territorial limits of Police Station Koral. The alleged occurrence took place within short span of time and the modus operendaireflects evil designs of the petitioner in committing the offence of mobile grabbing which is in rampant increase nowadays and cannot be taken lightly.
11. In addition, the alleged offence is not only heinous but is an offence against the society and falls within the ambit of prohibitory clause of Section 497, Cr.P.C. The way the things have gone, it can easily be inferred that the petitioner is a habitual offender which disentitles the petitioner to pray for release on bail. Reliance is placed upon case law titled as Waqas-ur-Rehman alias Moon v. The State (2021 SCMR 1899).”
3. The petitioner is accused of commission of offence of robbery under Section 392 read with Section 411, PPC. The request of the petitioner for release on bail on the statutory ground of delay in conclusion of trial was turned down by the learned ASJ-I, Islamabad-East vide order dated 15.10.2022 with direction to the learned Trial Court “to expedite the trial without giving unnecessary adjournments and after adopting coercive measures make sure the presence of the PWs.”
4. Heard the learned counsel for the petitioner, learned State Counsel and gone through the record with their able assistance. The learned counsel for the petitioner in support of his submissions relied upon case of Shakeel Shah v. The State & others (2022 SCMR 1), Javed Khan v. The State (2022 YLR 1655-Peshawar) and Muhammad Tanvir v.The State and another (2022 MLD 278-Lahore).
5. On the subject “grant of bail on statutory ground of delay in conclusion of trial” the underlying principle set by the Hon”ble apex Court in the case of Shakeel Shah supra is to the effect that:-
“The accused, thus, has a statutory right to be released on bail if his trial for such offence is not concluded within a period of one year from the date of his detention. The period of one year for the conclusion of the trial begins from the date of the arrest/detention of the accused and it is of little importance as to when the charge is framed and the trial commenced. The purpose and objective of the provision is to ensure that the trial of an accused is conducted expeditiously and the pre-conviction detention of an accused does not extend beyond the period of one year, in cases involving offences not punishable with death. In such cases, if the trial of an accused is not concluded within a year of his detention, the statutory right to be released on bail ripens in his favour.
6. It is further held that the statutory right to be released on bail is, however, subject to two exceptions: one is embodied in the third proviso itself and the second is provided in the fourth proviso. As per these exceptions, the right to be released on bail on the ground of delay in conclusion of the trial is not available to an accused if: (i) the delay in conclusion of the trial is occasioned by an act or omission of the accused or by any other person acting on his behalf, or (ii) the accused is a convicted offender for an offence punishable with death or imprisonment for life or is in the opinion of the Court a hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life.
7. Under the principle ibid, statutory ground of delay in conclusion of trial would be available to an accused if the trial is not concluded within one year from the date of his detention and he has to explore that the delay in conclusion of trial is not occasioned by any of his act or omission or by any other person acting on his behalf, he is not a previous convict for an offence punishment with death or imprisonment for life and that his case did not fall within the ambit of “hardened”, desperate” or “ dang ero us criminal” .
8. In the present case, the petitioner was arrested on 26.07.2021. The statutory ground of delay in conclusion of trial was, therefore, available to him after lapse of one year from the date of his arrest with effect from 27.07.2022. The charge was framed on 14.01.2022. The proceedings conducted subsequent to framing of the charge reveals that one most of the dates of hearing e.g. 07.04.2022, 20.04.2022, 18.05.2022, 06.06.2022, 20.06.2022 and 13.09.2002, the prosecution witnesses were absent while on two occasions the Presiding Officer was on leave, therefore, it cannot be said that the delay in conclusion of trial is occasioned by any act or omission on the part of the petitioner.
9. Adverting to the exceptions to the rule on the subject, it is noticed that though petitioner appears to be a habitual offender as being involved in other cases of like nature, yet the fact remains that he retains no conviction at his credit; that except cases registered
in the Month of March, April, June and July of 2021 under
Section 392, PPC, there is no record of his involvement in like cases previously i.e. prior to the year 2021 and his continuous detention for more than a year without any material or even remote progress in conclusion of trial, bring his case within the remit of third proviso to Section 497(1) Cr P C. The petitioner is, therefore, held entitled to post-arrest bail at this stage on statutory ground of delay in conclusion of trial.
10. Before parting with the order, it is necessary to mention that the learned Judicial Magistrate Section-30 Islamabad-East while dismissing application on statutory ground of delay in conclusion of trial in its order dated 27.09.2002 observedin Paragraph-07 that “there is no cavil to the proposition that trial commences after framing of charge and when reckoned on this touchstone, it is safe to say that one year has not passed to invoke the provision of law pertaining to statutory delay.” This observation, on the fact of it, is contrary to principle on the subject highlighted ibid while the learned ASJ in its order dated 15.10.2022 did not lay any comment upon the fresh ground i.e. statutory delay in conclusion of trial.
11. In view of above, instant bail petition is allowed. The petitioner(Abbas Khan) is admitted to post-arrestbail subject to his furnishing bail bonds in the sum of Rs. 1,00,000/-(one lac) with one surety in the like amount to the satisfaction of the learned Trial Court.
12. The decisions of the Hon”ble Supreme Court of Pakistan to the extent it decides a question of law or enunciates a principle of law, is binding on all other Courts of the country including the High Courts, under the mandate of Article 189 of the Constitution of the Islamic Republic of Pakistan 1973. Office is, therefore, directed to transmit copy of this order to the learned Member Inspection Team (MIT) for its circulation amongst the learned Presiding Officers of both the Sessions Divisions (East & West) of ICT for taking guidance from the principle in by the Hon”ble Apex Court in the case of Shakeel Shah supra.
(K.Q.B.) Bail allowed
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