PLJ 2024 Cr.C. (Note) 101
[Lahore High Court, Bahawalpur Bench]
Present: Sadiq Mahmud Khurram, J.
versus
STATE and another--Respondents
Crl. Misc. No. 4658-B of 2022, decided on 17.1.2023.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Pakistan Penal Code, (XLV of 1860), S. 295(c)--Post-arrest bail, grant of--First bail application was dismissed and it is second bail applied--Statutory ground--Delay in conclusion--By Supreme Court of Pakistan in plethora of judgments that if delay in conclusion of trial is not occasioned due to act of accused or any other person acting on his behalf then accused become entitled concession of bail as a matter of right--Deputy Prosecutor General states that petitioner is not a previously convicted offender for an offence punishable with death or imprisonment for life--There is no evidentiary material on record to declare petitioner as a hardened, desperate or dangerous criminal and he is not accused of an act of terrorism punishable with death or imprisonment for life--The upshot of above discussion is that since delay, in conclusion of trial has neither been caused nor occasioned by an act or omission of petitioner or any person acting on his behalf, hence he is entitled to concession of bail on account of delay in conclusion of trial--Bail allowed. [Para 5 & 6] A, B & C
Mr. Sittar Sahil, Advocate for Petitioner.
Rao Muhammad Riaz Khan, Deputy Prosecutor General for State.
Date of hearing: 17.1.2023.
Order
Through the instant petition filed under Section 497, Cr.P.C. the petitioner, namely Sunny Waqas, seeks post-arrest bail in the case F.I.R No. 353 of 2019, dated 29.06.2019, registered in respect of an offence under Section 295C, P.P.C. at the Police Station Faqirwali, District Bahawalnagar.
2. The allegations as against the petitioner, namely Sunny Waqas, culled from the evidentiary material produced before the Court, are that he had in his possession three prints of the drawings of the Holy Prophet Muhammad (peace be upon him).
3. I have heard the learned counsel for the petitioner, the learned Deputy Prosecutor General and have gone through the record of this case with their able assistance.
4. The perusal of the record reveals that the petitioner previously applied for bail after arrest, which petition bearing Crl. Misc. No. 1020-B/2020 came up for hearing before this Court on 05.05.2020 however the said petition was withdrawn and dismissed on the said date. The petitioner has moved the instant bail application on the basis of the statutory ground of delay in the conclusion of trial as even after the lapse of a period of more than three years and six months from 29.06.2019, the date of arrest of the petitioner, the trial of the case has not concluded.
5. It has been noticed by this Court that the only ground for the grant of post-arrest bail agitated by the learned counsel for the petitioner before this Court is the delay in the conclusion of the trial of the petitioner’s case. Admittedly, the petitioner was arrested in this case on 29.06.2019, when he was taken into custody by the Investigating Officer and now a period of more than three years and six months has elapsed and he is still behind the bars without the conclusion of the trial. In order to determine the cause of delay in the conclusion of the trial, a report was sought not only from the learned trial Court but also from the District Public Prosecutor. A perusal of the report submitted by the learned trial Court reveals that the charge against the accused was framed on 24.02.2022 and since then statements of only six prosecution witnesses have been recorded in so many years. According to the report submitted by the Assistant District Public Prosecutor concerned, thirty seven witnesses have been named in the calendar of the witnesses in the report submitted under Section 173, Code of Criminal Procedure, 1898 and statements of fifteen prosecution witnesses are yet to be recorded, the number of prosecution witnesses which the Assistant District Public Prosecutor intends to produce as per his report submitted before this Court. There is no material available on the record that the delay in the conclusion of the trial had been occasioned on account of any act or omission of the petitioner or any other person acting on his behalf. The perusal of the order sheet maintained by the learned trial Court also reveals that there was no “visible concerted effort orchestrated by the accused” to delay the conclusion of the trial. No “visible concerted effort orchestrated by the accused” to delay the conclusion of the trial is apparent on the record. The liberty of a citizen has been elevated to the high dais by the provisions of Articles 7 and 9 of the Constitution of the Islamic Republic of Pakistan, 1973, which inter alia provide that no citizen shall be deprived of his life and/or liberty, save in accordance with law, nor any accused person shall be detained without lawful authority of the competent Court. To have a speedy trial, is the fundamental right of any accused, being universally acknowledged. It has been held by the Supreme Court of Pakistan in plethora of judgments that if the delay in conclusion of the trial is not occasioned due to the act of the accused or any other person acting on his behalf then the accused become entitled the concession of bail as a matter of right. Reliance in this regard is placed on the case of “Zahid Hussain Shah versus The State” (PLD 1995 SC 49) wherein it has been held as under:
“The right of an accused to be enlarged on bail under the 3rd proviso to Section 497(1), Cr.P.C. is a statutory right which cannot be denied under the discretionary power of the Court to grant bail. The right of an accused to get bail under the 3rd proviso of Section 497(1), Cr.P.C. is not left to the discretion of the Court but is controlled by that provision. The bail under the 3rd proviso (ibid) can be refused to an accused by the Court only on the ground that the delay in the conclusion of the trial had occasioned on account of any act or omission of the accused or any other person setting(sic)(acting) on his behalf. The bail under the 3rd proviso ibid can also be refused by the Court if the case of the accused fell under the 4th proviso to Section 497(1), Cr.P.C. In all other cases the Court must grant bail.”
It was further held in the case of Zahid Hussain Shah (supra) as under:
“The other reason for refusing bail to appellant given by the learned Judge in Chambers was that the injury caused by the appellant was on the vital part of the body and it was declared grievous by the doctor. This reason was hardly relevant for refusing bail to the appellant under the 3rd proviso to Section 497(1), Cr.P.C.”
Reliance in this regard is also placed on the case of “Muhammad Azeem versus The State and others” (2020 SCMR 458) wherein it has been held as under:
“2. After hearing the learned counsel for the parties at length and perusal of available record, it has been observed by us That as per contents of FIR, the petitioner is accused of Causing a firearm injury on the person of Muhammad Farooq. He was taken into custody on 15.09.2018. First charge was framed against him alone on 13.11.2018. Thereafter, an Application was submitted by the complainant side for summoning another person as accused, which was allowed on 30.05.2019, formal charge was framed against the petitioner and his co-accused on 13.11.2019 and proceedings commenced, meaning thereby that when second charge was framed, the petitioner’s case for bail on statutory ground had already matured. With the assistance of learned counsel for the parties, we have perused some of the orders of the learned trial Court, which are available on file and have found that on certain occasions non-bailable warrants of arrest of witnesses were issued. In these circumstances, the petitioner has made out a case for his release on bail on statutory ground i.e. non-conclusion of trial within the period specified under Section 497, Code of Criminal Procedure, as from the circumstances of the case, he cannot be solely held responsible for delay in the conclusion of trial, nor is he a desperate or hardened criminal; nor an accused of terrorism and has no record of previous conviction.”
Reliance in this regard is also placed on the case of “Ali Akbar versus The State and others” (2020 SCMR 1225) and on the case of “Adnan Prince versus The State through P.G., Punjab and another” (PLD 2017 SC 147) wherein it has been held as under:
“3. The earlier bail petition of the petitioner was dismissed on merits up to this Court, however, after the expiry of statutory period, provided in the proviso to Section 497, Cr.P.C. he repeated his bail petition but could not succeed. He is facing trial in case FIR No. 675 dated 09.10.2013 for crimes under Section 295-A, B & C of the P.P.C. registered at Police Station Township, District Lahore.
4. We have gone through the brief summary/list of the order sheets of the learned trial Court where delay has mainly been caused by the prosecution or the Court itself, seized of the trial and even if the adjournments sought by the accused/petitioner due to absence of his counsel or his non-availability is excluded, even then he would be entitled to the concession of bail because in that case too his total detention during the trial becomes more than two years.
5. The learned Additional Prosecutor General, Punjab assisted by the counsel for the informant/complainant contended that this Court has already dismissed a bail petition by holding that once adjournments are sought by the accused/petitioner then it is not a matter of mathematical calculation and that could be a ground to refuse bail to accused person.
6. The judgment on which reliance was placed was delivered at the time when relevant provisions of Criminal Procedure Code were not amended and Article 10-A was not part of the Constitution of Pakistan which require that each and every accused must be provided opportunity of fair trial and also the State has been put under obligation that each and every accused must be provided opportunity of fair trial, therefore, in our considered view the said ratio laid down by this Court would not be strictly attracted.
7. It has been consistently held by this Court that if a case on such statutory delay in the conclusion of trial is made out then, ordinarily, bail should not be refused on hyper technical ground.
8. The Primary object behind this view is that in case any accused person under detention is acquitted at the end of the trial then, in no manner the wrong, caused to him due to long incarceration in prison pending trial, he cannot be compensated in any manner while on the other hand, in case, if he is convicted then, he has to be rearrested and put behind the bars to undergo his sentence and in that case no prejudice would be caused to the prosecution/complainant.
9. Of course, it is too late but we are constrained to give a wake-up call to the prosecution/State that in Criminal cases involving capital punishment, the Investigators and Prosecutors, consisting of large fleets who are being sustained and maintained at the cost of tax payers money of the poor people, shall diligently perform their statutory duties/obligations otherwise, they will be guilty of violating the mandatory statutory provisions of the, Cr.P.C., the Constitution and Law relating to the prosecution branch. It is a universal principle of law that to have a speedy trial is the right of every accused person, therefore, unnecessary delay in trial of such cases would amount to denial of justice.”
The august Supreme Court of Pakistan in the case of “Shakeel Shah versus The State and others” (2022 SCMR 1) has held as under:
“The petitioner is charged with offences punishable under Sections 392 and 411, P.P.C., which are not punishable with death; his bail plea is, therefore, covered by part (a) of the third proviso to Section 497(1), Cr.P.C. The above provision envisages that in an offence not punishable with death, the trial of the accused is to be concluded within a period of one year from the date of detention of the accused, and in case the trial is not so concluded, the law mandates the release of the accused on bail. 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.
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5. The act or omission on the part of the accused to delay the timely conclusion of the trial must be the result of a visible concerted effort orchestrated by the accused. Merely some adjournments sought by the counsel of the accused cannot be counted as an act or omission on behalf of the accused to delay the conclusion of the trial, unless the adjournments are sought without any sufficient cause on crucial hearings, i.e., the hearings fixed for examination or cross-examination of the prosecution witnesses, or the adjournments are repetitive, reflecting a design or pattern to consciously delay the conclusion of the trial. Thus, mere mathematical counting of all the dates of adjournments sought for on behalf of the accused is not sufficient to deprive the accused of his right to bail under the third proviso. The statutory right to be released on bail flows from the constitutional right to liberty and fair trial under Articles 9 and 10A of the Constitution. Hence, the provisions of the third and fourth provisos to Section 497(1), Cr.P.C. must be examined through the constitutional lens and fashioned in a manner that is progressive and expansive of the rights of an accused, who is still under trial and has the presumption of innocence in his favour. To convince the Court for denying bail to the accused, the prosecution must show, on the basis of the record, that there is a concerted effort on the part of the accused or his counsel to delay the conclusion of the trial by seeking adjournments without sufficient cause on crucial hearings and/or by making frivolous miscellaneous applications.”
The august Supreme Court of Pakistan in the case of “Nadeem Samson versus The State and others” (PLD 2022 Supreme Court 112) has held as under:
“8. The scope of the 3rd proviso to Section 497(1), Cr.P.C. has recently been expounded by this Court in the Shakeel Shah case, cited by the counsel for the petitioner, by examining and interpreting its provisions as well as the provisions of the related 4th proviso, in detail. We, therefore, think it unnecessary to re-examine the scope of those provisos again in this case, especially when we find ourselves in agreement with what has been held in that case. What we consider appropriate to do is to recapitulate the main principles enunciated therein, as to the meaning, extent and scope of the 3rd proviso, for clear understanding of, and compliance by, all the other Courts in the country in terms of Article 189 of the Constitution of the Islamic Republic of Pakistan 1973. They are:
(i) The purpose and object of the 3rd proviso to Section 497(1), Cr.P.C. is to ensure that the trial of an accused is conducted and concluded expeditiously, and that the pre-conviction detention of an accused does not extend beyond the period of two years in cases involving an offence punishable with death, or one year in other cases;
(ii) The period of one year or two years, as the case may be, for the conclusion of the trial begins from the date of the detention of the accused in the case, not from the date when the charge is framed and trial commenced;
(iii) A statutory right to be released on bail accrues in favour of the accused if his trial is not concluded within the specified period, i.e., exceeding one year or two years as the case may be, from the date of his detention;
(iv) This statutory right of the accused to be released on bail is, however, subject to two exceptions: one is embodied in the 3rd proviso itself and the second is provided in the 4th proviso, which are: (a) 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, and (b) 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.
(v) The act or omission on the part of the accused to delay the timely conclusion of the trial must be the result of a visible concerted effort orchestrated by the accused. Merely some adjournments sought by the counsel for the accused cannot be counted as an act or omission on behalf of the accused to delay the conclusion of the trial, unless the adjournments are sought without any sufficient cause on crucial hearings, i.e., the hearings fixed for examination or cross-examination of the prosecution witnesses, or the adjournments are repetitive reflecting a design or pattern to consciously delay the conclusion of the trial; and
(vi) The phrase “a hardened, desperate or dangerous criminal” denotes an accused who is likely to seriously injure and hurt others without caring for the consequences of his violent act and will pose a serious threat to the society if set free on bail. Such tentative finding as to character of the accused must be based upon careful examination of the facts and circumstances of the case, supported by sufficient incriminating material.”
The learned Deputy Prosecutor General states that the petitioner is not a previously convicted offender for an offence punishable with death or imprisonment for life. There is no evidentiary material on record to declare the petitioner as a hardened, desperate or dangerous criminal and he is not accused of an act of terrorism punishable with death or imprisonment for life.
6. The upshot of the above discussion is that since the delay, in the conclusion of the trial has neither been caused nor occasioned by an act or omission of the petitioner or any person acting on his behalf, hence he is entitled to the concession of bail on account of delay in conclusion of the trial. For the foregoing reasons the petition in hand is allowed and the petitioner is admitted to post arrest bail subject to his furnishing bail bonds in the sum of Rs. 2,000,000/- (Rupees two million only) with two sureties, each in the like amount, to the satisfaction of the learned trial Court.
7. It is clarified that the observations enumerated are absolutely tentative in nature and restricted only to the extent of this particular petition, having no nexus and relevance with the trial, which shall be concluded quite independently and purely on merit. Additionally, a direction is issued to the learned trial Court to conclude the trial of the case expeditiously, preferably within a period of three months from the receipt of the certified copy of this order. It is made clear that if the petitioner or any person acting on his behalf causes delay in the conclusion of the trial or if the petitioner absents himself from the learned trial Court or if the petitioner misuses the concession of bail in any manner, the learned trial Court would be at liberty to cancel his bail, in accordance with the law.
(A.A.K.) Bail allowed
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