PLJ 2024 Cr.C. (Note) 124
[Lahore High Court, Multan Bench]
Present: Sardar Muhammad Sarfraz Dogar, J.
WAQAR--Petitioner
versus
STATE etc.--Respondents
Crl. Misc. No. 8959-B of 2023, heard on 22.2.2024.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(3rd Proviso & 4th Proviso)--Pakistan Penal Code, (XLV of 1860), S. 302--Statutory ground--Delay in trial--Post arrest bail--Grant of--As per 3rd Proviso the Section 497(1), Cr.P.C., a person accused of an offence punishable with death, if detained for such an offence for a continuous period exceeding two years shall be released on bail with the exception contained in the 4th Proviso to Section 497, Cr.P.C.--Trial Court was constrained to issue non-bailable warrants of arrest time and again in order to procure the attendance of the prosecution and again in order to procure the attendance of the prosecution evidence--Most of the delay had occasioned due to non-appearance of prosecution witnesses and for other multiple reasons including strikes of bar etc--Delay so caused could not be legitimately attributed to the petitioner--Petitioner has made out a case for his release on bail on the statutory ground of delay in the conclusion of the trial--Petition accepted.
[Para 4, 5, 6 & 8] A, B, C, D
2024 SCMR 28; 2022 SCMR 1; PLD 2022 SC 112; PLJ 2018 Cr.C. 730 (DB); 1993 PCrLJ 781; PLD 2023 SC 648 ref.
Mr. James Joseph, Advocate for Petitioner.
Mr. Safdar Hussain Sarsana, Advocate for Complainant.
Mr. Hassan Mahmood Khan Tareen, Deputy Prosecutor General for State.
Date of hearing: 22.2.2024.
Order
Through this petition in terms of Section 497, Cr.P.C., Waqar, the petitioner has sought post arrest in case FIR No. 435 dated 27.05.2021, registered under Section 302, PPC at Police Station Ghallah Mandi District Sahiwal at the instance of Naveed Bashir complainant.
2. Heard. Record perused.
3. Irrespective to the merits of the case, the bail is claimed mainly on the ground of statutory delay in the conclusion of trial as according to the learned counsel for the petitioner, a right has accrued in favour of the petitioner under the third proviso of Section 497(1), Cr.P.C., to be released on bail because the conditions embodied therein have been met and the delay in conclusion of trial cannot be attributed to the petitioner and that the mischief contemplated under the fourth proviso is not attracted. Adds that the petitioner was arrested in this case on 22.7.2021 and the two Years period specified in the third proviso of Section 497(1) of the Cr.P.C. has passed, but in spite of that the trial has not been concluded and the delay in conclusion of trial is neither attributable to the petitioner nor his counsel rather the delay in the trial has occasioned on account of non-appearance of the complainant and his witnesses, who despite issuance of summons, bailable warrants of arrest and non-bailable warrants of arrest failed to appear before the learned trial Court as such the petitioner is not solely at fault who is otherwise suffering the hardship of continuous incarceration of more than two years.
4. Without commenting upon the merits of the case, which may prejudice the case of the parties during the on-going trial before the learned trial Court, the point for consideration before this Court is as to whether after the expiry of certain period, benefit of proviso 3 of Section 497(1), Cr.P.C. could be available to the petitioner in all eventualities and as to whether his case falls within the definition of hardship due to his prolonged and continuous incarceration? No doubt, the right of an accused to seek bail on statutory ground cannot be defeated for any other reason except on the ground as has been explicitly described under the third and fourth provisos to Section 497(1), Cr.P.C. To construe the legal imports of law, it is advantageous to reproduce third and fourth provisos of Section 497(1), Cr.P.C.:
“497. When bail may be taken in cases of non-bailable offence. (1) When any person accused of non-bailable offence is arrested or detained without warrant by an officer-incharge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of [an offence punishable with death or [imprisonment for life or imprisonment for ten years]
Provided that …………………
Provided further that …………………
Provided further that the Court shall, except where it is of the opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf, direct that any person shall be released on bail.
(a) Who, being accused of any offence not punishable with death, has been detained for such offence for a continuous period exceeding one year or in case of a woman exceeding six months and whose trial for such offence has not concluded; or
(b) Who, being accused of an offence punishable with death, has been detained for such offence for a continuous period exceeding two years and in case of a woman exceeding one year and whose trial for such offence has not concluded;
Provided further that the provisions of the foregoing proviso shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous
As per 3rd Proviso to Section 497(1), Cr.P.C., a person accused of an offence punishable with death, if detained for such an offence for a continuous period exceeding two years shall be released on bail, of course, with the exception contained in the 4th Proviso to Section 497, Cr.P.C. that the provisions of Third Proviso shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person, who, in the opinion of the Court, is a hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life. Third Proviso to Section 497(1), Cr.P.C. would thus become operative as and when the period specified therein has expired but the trial has not been concluded without any fault on part of the accused. Reliance is placed on “Muhammad Usman vs. The State and another” (2024 SCMR 28). The scope of the 3rd Proviso to Section 497(1), Cr.P.C. has been expounded by the Hon’ble Supreme Court of Pakistan in the case cited as ‘Shakeel Shah versus The State’ (2022 SCMR 1) and the principles enunciated therein, have been recapitulated by the Apex Court in the case reported as “Nadeem Samson versus The State” (PLD 2022 Supreme Court 112) which for the sake of ready reference are reproduced as under:
(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.
5. In this context, it has been noticed that the petitioner was arrested and detained, in this case, on 22.7.2021. The charge against the petitioner was framed on 21.10.2021 and the prosecution evidence was summoned for 29.10.2021. Not only on the said date but also on 9.11.2021, 22.11.2021 and 6.12.2021, no PW was in attendance. On 17.12.2021, on the request of learned counsel for the complainant the case was adjourned to 3.1.2022 and on the said date, remaining evidence of the complainant was not available, therefore, the case was adjourned to 11.1.2022 for prosecution evidence. On that date too, remaining evidence of the complainant was not available and on the request of learned counsel for the complainant the case was adjourned to 21.1.2022. It has been noticed with great concern, that on number of dates, prosecution witnesses were not in attendance who were firstly summoned through summons, thereafter, in order to procure their attendance bailable warrants were issued time and again but in vain. At last, the learned trial Court was constrained to issue non-bailable warrants of arrest time and again in order to procure the attendance of the prosecution evidence. In the similar facts and circumstances of the case, the learned Division Bench of this Court in the case reported as “Muhammad Hussain versus State, etc” (PLJ 2018 Cr.C. 730 (DB), while referring to the case reported as “Asif Ali Zardari vs. The State” (1993 P.Cr.LJ 781), has also granted bail to the petitioner on the basis of statutory delay in the trial. The extract from the said order, i.e. paragraphs No. 9 & 10, is reproduced as under:
“9. The petitioner is in jail since 7.7.2015, while conclusion of the trial is not in sight because the prosecution witnesses are not turning up, in spite of coercive process has been issued against them, therefore, to expect the conclusion of the trial in the near future, would be nothing but a farfetched dream. In the case titled “Mr. Asif Ali Zardari vs. The State” (1993 PCr.LJ 781), A Full Bench of the Sindh High Court, granted him bail on the basis of statutory delay in the trial, the Full Bench of the Sindh High Court at Karachi held that in the case of shocking delay in the conclusion of trial, the accused was entitled to the concession of bail on the strength of third proviso to Section 497, Cr.P.C., which view has not been set aside by the August Supreme Court of Pakistan till date.
10. In view of the above, in our view, the petitioner has become entitled to grant of bail as of right on the basis of shocking delay in the conclusion of trial, more so, if further time is allowed to the prosecution, it would be absolutely impossible to conclude trial before the Trial Court. The petitioner is still awaiting his trial, therefore, his further detention in jail would serve no useful purpose for the prosecution.
6. From the perusal of the order sheet, it depicts that from 21.10.2021 to 18.9.2023, almost for 53 times case was adjourned and most of the delay had occasioned due to non-appearance of prosecution witnesses and for other multiple reasons including strikes of bar etc. In this view of the matter, the delay so caused could not be legitimately attributed to the petitioner as there is nothing on the record to show that the act or omission on the part of the petitioner to delay the conclusion of the trial was the result of a visible concerted effort orchestrated by him, whereas, some adjournments sought by the counsel for the petitioner cannot be counted as an act or omission on behalf of the accused to delay the conclusion of the trial as it cannot be said that the adjournments were sought without any sufficient cause on crucial hearings or the adjournments were repetitive reflecting a design or pattern to consciously delay the conclusion of the trial. Reliance is placed on “Syeda Ayesha Subhani vs. The State and others” (PLD 2023 Supreme Court 648), wherein, the Hon’ble Apex Court has observed as under:
“Other than, this, on a few hearings during this year, the respondent could not appear because he was seriously ill and was hospitalized while on some other hearings when the respondent appeared the witnesses of the prosecution were not present. Thus, the respondent was not at fault for the delay in the conclusion of the trial at least in the year preceding the date on which he was granted bail by the High Court.
7. The petitioner was apprehended in this case on 22.7.2021 and till to date, a continuous period exceeding two years since the detention of the petitioner in this case had lapsed without conclusion of the trial; therefore, a right to be released on bail has prima facie accrued to the petitioner, which could be denied to the petitioner only when his case falls into any of the two exceptions: (a) if the delay in conclusion of the trial had occasioned by an act or omission of the petitioner or by any other person acting on his behalf, and (b) if the petitioner is found to be 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 accused of an act of terrorism punishable with death or imprisonment for life, whereas, the case of the petitioner does not fall any of the exceptions mentioned above and learned DPG under instructions of the police officer present in Court has candidly confirmed that the petitioner is first offender as there is no record of previous conviction of the petitioner, as such he cannot be declared as a hardened or desperate person.
8. Considering all these circumstances and seeking wisdom from the case mentioned above, I am of the view that the petitioner has made out a case for his release on bail on the statutory ground of delay in the conclusion of the trial. In sequel to what has been discussed above, the instant petition is accepted as a consequence whereof, the petitioner is admitted to bail after arrest subject to his furnishing bail bonds in the sum of Rs. 2,00,000/-with two sureties each in the like amount to the satisfaction of learned trial Court.
9. Before parting with this order, the learned trial Court seized of the matter is directed to expedite the proceedings of trial and ensure its conclusion in the shortest possible time. It is made clear that if the petitioner misuses the concession of bail or delay in the conclusion of trial is caused by him or anyone else acting on his behalf, the learned trial Court shall be competent to recall the bail granted to him, after hearing the parties, strictly in accordance with law.
(K.Q.B.) Petition accepted
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