2024 S C M R 28
Bail application dismissed as withdrawn --- Subsequent / second bail application , filing of --- Maintainability --- Fresh grounds --- Scope --- Second bail petition repeating the same grounds that were earlier taken is not competent --- Moreover , the grounds raised by an accused in a subsequent bail application which were available at the time of filing of the earlier petition could also not be treated as fresh grounds nor urged for the purposes of seeking the same relief --- If the ground on which bail has been sought subsists when a bail petition is withdrawn then such a ground can also not be taken again --- However , the exception to this rule is in the case of entitlement of bail on statutory grounds ( of delay in conclusion if trial ) .
Bail --- Statutory ground of delay in conclusion of trial --- Quantum of delay attributable to the accused , calculation of --- While calculating the quantum of delay attributable to an accused , the court is required to consider whether or not the progress and conclusion of the trial was in any manner delayed by the act and omission on the part of the accused --- While ascertaining the delay , the cumulative effect in disposal of the case has to be considered and its assessment cannot be determined on the basis of mathematical calculations by excluding those dates for which adjournments had been sought by the accused or the latter's counsel --- Main factor for consideration is the attendance of the witnesses and whether , despite the matter having become ripe for the recording of evidence , whether the delay was caused by the defence --- Recording of the statement of a last witness would also not defeat the right recognized under the third proviso and it would be unreasonable to conclude that the trial has been completed . MUHAMMAD USMAN versus The STATE and another ---
Criminal Petition No. 1233 of 2023
2024 S C M R 28
Bail , grant of - Statutory ground of delay in conclusion of trial --- In the present case the two year period specified in the third proviso of section 497 ( 1 ) of the Cr.P.C. has passed --- Despite more than two years of continuous incarceration of the petitioner ( accused ) , the trial had not concluded .... Delay in conclusion of trial was not attributable to the petitioner nor his counsel , rather , it had been on account of the abscondance of the co - accused and their surrender or arrest at different times --- Each time the charge had to be reframed --- Petitioner was not at fault and yet he had to suffer the hardship of incarceration of more than two years- .. Co - accused were stated to be close relatives of the petitioners and , therefore , the prosecution had argued that his complicity could not be ruled out --- Legislature had expressly confined the delay under the third proviso to an act or omission of the ' accused ' or ' any person acting on his behalf ' --- Accused cannot be made liable for the acts or omissions of a co - accused regardless of the relationship , except when the prosecution can clearly show , based on undisputed facts that the accused seeking bail was complicit --- Latter's acts and omissions , or those of a person acting on his behalf , were crucial and could be considered for the court to determine the right to be released on bail on the ground described under the third proviso --- Delay caused by the co accused was not attributable to the petitioner because no act or omission on the latter's part nor a person acting on his behalf could be shown --- Petition was converted into appeal and allowed , and accused was admitted to bail . S . 497 ( 1 ) , third proviso --- Constitution of Pakistan , Art . 185 ( 3 ) --- Bail --- Statutory ground of delay in conclusion of trial --- Principles --- Right ( to bail ) recognized under the third proviso of section 497 ( 1 ) cannot be denied to an accused on the basis of discretionary powers of the court to grant bail --- Said right has not been left to the discretion of the court , rather , its accrual is subject to the fulfillment of the conditions mentioned under the third proviso of section 497 ( 1 ) of the Cr.P.C .--- If any act or omission of the accused has hindered the the third proviso of conclusion of trial within the period specified section 497 ( 1 ) of the Code of Criminal Procedure , 1898 ( Cr.P.C. ) then a right , as contemplated thereunder , will not accrue in the latter's favour and , therefore , he or she , as the case may be , would not become entitled to be released on bail on the statutory ground of delay in conclusion of the trial --- Nonetheless , if after the rejection of the plea of bail on statutory grounds , the accused has subsequently corrected himself / herself and has abstained from doing any act or omission in the following period specified under the third proviso , then a fresh ground would accrue to the accused to invoke the jurisdiction of the court for grant of bail --- Third proviso to section 497 ( 1 ) of Cr.P.C. would thus become operative as and when the period specified therein has expired but the trial has not concluded without any fault on part of the accused --- In the case in hand , the ground of statutory delay was not available to the petitioner ( accused ) when he had sought the concession of bail through the two attempts made by him --- It was during subsistence of the second bail petition that the period specified under the third proviso had ripened and , therefore , a fresh ground became available to seek bail --- Petition before the High Court was dismissed for non - prosecution and such dismissal did not prejudice his right to file a fresh petition before the High Court , which he did --- Petition was competent because a fresh ground of delay in conclusion of trial had become available to him --- Petition was converted into appeal and allowed , and accused was admitted to bail .
MUHAMMAD USMAN versus The STATE and another ---
Criminal Petition No. 1233 of 2023
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