PLJ 2024 Cr.C. (Note) 185
[Lahore High Court, Multan Bench]
Present: Sardar Muhammad Sarfraz Dogar, J.
versus
STATE and another--Respondents
Crl. Misc. No. 728-B of 2024, decided on 5.4.2024.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Pakistan Penal Code, (XLV of 1860), Ss. 302, 324, 337-A(i), 337-F(i), 337-F(ii), 337-A(ii), 342, 354, 379, 201, 148 & 149--Bail after arrest, grant of--Statutory ground--The petitioners were arrested in this case and charge against them was framed for first time--It is also admitted fact that right to be released on bail on basis of lapse of statutory period of from date of detention had been accrued to petitioners--A continuous period of exceeding two years since detention of petitioners in case has been lapsed without conclusion of trial; therefore, a right to be released on bail has prima facie been accrued to petitioners--This right could be denied to petitioners only when their case falls into any of two exceptions: (a) if delay in conclusion of trial had been occasioned by an act or omission of petitioners of by any other person acting on their behalf, and (b) if petitioners are found to be a convicted offender for an offence punishable with death or imprisonment for life, or is in opinion of Court to be a hardened, desperate or dangerous criminal, or accused of an act of terrorism punishable with death or imprisonment for life--There is nothing on record to show that act or omission on part of petitioners to delay conclusion of trial was result of a visible concerted effort orchestrated by then--On other hand, delay is visibly attributed to prosecution who was under legitimate duty to ensure conclusion of trial of petitioners/accused who was under trial prisoner, as such it can be unequivocally stated that petitioners cannot be blamed for delay so caused--The prosecution was required to play its role well to get trial concluded within statutory period of two year but same has not been done so and as such has committed violation of express statutory provision giving rise statutory right to petitioners for releasing on bail, which could only be curtailed when any of above noted two exceptions are in field--On other hand, Deputy Prosecutor General under instructions of police officer present in Court has confirmed that there is no record of previous conviction or any criminal antecedents, as such they cannot be declared as a hardened or desperate or dangerous criminal. [Para 7 & 8] A & B
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(1)-- The statutory right to be released on bail on ground of delay in conclusion of trial flows from constitutional rights to liberty, fair trial and dignity guaranteed under Articles 9, 10A and 14 of Constitution of Islamic Republic of Pakistan, 1973--The provisions of 3rd proviso to Section 497(1), Cr.P.C. must be fashioned in a manner that is progressive and expansive of these rights of accused, who are still under trial, and their guilt being not yet proved, has in their favour presumption of innocence.
[Para 10] C
PLD 2023 SC 648, 2023 SCMR 1450 and 2024 SCMR 28.
Duty of Court--
----This Court has to perform neutral sacred constitutional duty to ensure administration of justice for both parties and has to protect their respective rights--It was duty of prosecution to act vigilantly to get trial concluded within statutory period but it remained in deep slumber and did not even bother to produce witnesses before trial Court--This conduct of complainant speaks volume in respect of his slackness and reluctance to get trial concluded--Therefore, keeping in view this sluggish, negligent and careless attitude of prosecution as well as complainant and in absence of any concrete material on record, mere leveling of allegations cannot be stretched so far in favour of prosecution to deprive and bulldoze petitioners’ statutory right to be released on bail after expiry of specified period--Due to this conduct of prosecution, conclusion of trial is not in sight in near future, as such petitioners cannot be at mercy of prosecution to rot and languish in jail merely fon ground that petitioners are accused of heinous offence and it does not amount giving license to prosecution to protract trial for unlimited time according to its whims and wishes--On other hand, there is no cavil to proposition that release of an accused on bail does not tantamount his acquittal rather it is just shifting custody of accused to sureties. [Para 11] D
Statutory Ground--
----Bail--Granted bail to accused on basis of statutory delay in trial.
[Para 13] E
PLJ 2018 Cr.C. 730 (DB) and 1993 PCr.LJ 781.
Malik Shafqat Raza Thaheem, Advocate for Petitioners.
Ch. Shakeel Ahmad Sandhu, Advocate for Complainant.
Mr. Hassan Mehmood Khan Tareen, Deputy Prosecutor General for State.
Date of hearing: 5.4.2024.
Order
Through this petition in terms of Section 497, Cr.P.C., Naseer Ahmad son of Ali Ahmad and Abdul Khaliq son of Noor Muhammad, the petitioners, have sought post arrest bail in case FIR No. 233 dated 26.10.2021, registered for the offences under Sections 302, 324, 337-A(i), 337-F(i), 337-F(ii), 337-A(ii), 342, 354, 379, 201, 148, 149, PPC with Police Station Miranpur (Mailsi) District Vehari at the instance of Allah Rakha complainant.
2. Learned counsel for the petitioners contends that although, it is fourth post arrest bail of the petitioners, however, all the three earlier bail petitions have been dismissed as withdrawn without advancing arguments. Further contends that expeditious and early trial is inalienable right of every accused but in the case in hand the trial has not been concluded in spite of the fact that the accused was not responsible for causing delay, as such he cannot be left at the mercy of the prosecution to rot in jail for an indefinite period. It is next contended that the petitioners were taken into custody on 19.11.2021 whereas charge was framed on 16.05.2022; that the period for conclusion of trial as stipulated under Section 497 Code of Criminal Procedure has already been lapsed; that the PWs have failed to appear before the trial Court on numerous occasions and did not turn up before the Court for their evidence as such the petitioners solely cannot be held responsible for delay in the conclusion of the trial; that there is no previous record of conviction of the petitioners and in the circumstances of the case, the petitioners cannot be held to be hardened, desperate or dangerous criminal. Hence, the petitioners are entitled to the grant of bail.
3. Conversely, the learned Deputy Prosecutor General on behalf of the State duly assisted by learned counsel for the complainant has vehemently opposed the bail petition by contending that petitioners are dangerous, desperate and hardened criminal within the meaning of 4th Proviso to Section 497, Cr.P.C., thus, this petition is liable to be dismissed. Even otherwise, the petitioners could not produce their counsel on number of dates when the examination in chief of private PWs were recorded by the learned trial Court and case has been adjourning at the request of accused persons. Therefore, they are not entitled bail on merits.
4. Arguments heard and record perused with the able assistance of learned counsel for the petitioners, learned counsel for the complainant as well as learned DPG appearing on behalf of State.
5. The perusal of record reveals that complainant has implicated as many as twelve named and five unknown accused persons in the FIR. The petitioners have not been attributed injury to the deceased rather they have been attributed injuries (falling under Section 337-D of PPC) to injured Naseem alias Gonga and Allah Ditta. Injury to deceased Kauser Bibi has been attributed to co-accused Riaz alias Addi, who has been granted post arrest bail by this Court vide order dated 29.03.2023 passed in Crl. Misc. No. 886-B of 2023 due to the reason that during the course of investigation, police changed the role of said co-accused Riaz alias Addi and opined that co-accused Muhammad Yar Bhatti caused the death of deceased. However, admittedly, the said Muhammad Yar Bhatti, filed his pre-arrest bail petition before the learned trial Court. During the course of said pre-arrest bail petition, the complainant Allah Rakha filed his affidavit wherein he expressed his no objection if the pre-arrest bail petition of the said co-accused Muhammad Yar Bhatti is accepted, whereupon, learned trial Court accepted the pre-arrest bail petition vide order dated 23.05.2023. Therefore, keeping in view the above distinctions, case of the petitioners is rather at better footing that than of co-accused Muhammad Raiz alias Addi and Muhammad Yar Bhatti.
6. Even otherwise, the learned counsel for the petitioners has also sought release on statutory ground. As such, the next 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 accused in all eventualities and as to whether the case of the petitioners falls within the definition of hardship due to prolonged and continuous incarceration of the petitioners? 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
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 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;
(vi) 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.
7. Admittedly, the petitioners were arrested in this case on 19.11.2021 and charge against them was framed for the first time on 16.05.2022. It is also admitted fact that the right to be released on bail on the basis of the lapse of statutory period of from the date of detention had been accrued to the petitioners on 19.11.2023. As such, it can be safely observed that a continuous period of exceeding two years since the detention of the petitioners in the case has been lapsed without conclusion of the trial; therefore, a right to be released on bail has prima facie been accrued to the petitioners. This right could be denied to the petitioners only when their case falls into any of the two exceptions: (a) if the delay in conclusion of the trial had been occasioned by an act or omission of the petitioners or by any other person acting on their behalf, and (b) if the petitioners are found to be a convicted offender for an offence punishable with death or imprisonment for life, or is in the opinion of the Court to be a hardened, desperate or dangerous criminal, or accused of an act of terrorism punishable with death or imprisonment for life.
8. Now, this Court has to evaluate as to whether case of the petitioners attracts any of the above noted exceptions or not? In this. Reference, the perusal of attested copies of order sheet of the learned trial Court, reveals that after framing of charge on 16.05.2022 till 19.11.2023 i.e. the date of completion of statutory period of petitioners, six official PWs have been recorded by the learned trial Court whereas till that date, no private PW was got recorded by the complainant.
9. There is nothing on the record to show that the act or omission on the part of the petitioners to delay the conclusion of the trial was the result of a visible concerted effort orchestrated by then. On the other hand, the delay is visibly attributed to the prosecution who was under legitimate duty to ensure conclusion of trial of petitioners/accused who was under trial prisoner, as such it can be unequivocally stated that petitioners cannot be blamed for the delay so caused. The prosecution was required to play its role well to get the trial concluded within the statutory period of two year but the same has not been done so and as such has committed violation of express statutory provision giving rise statutory right to the petitioners for releasing on bail, which could only be curtailed when any of above noted two exceptions are in field. On the other hand, learned Deputy Prosecutor General under instructions of the police officer present in Court has confirmed that there is no record of previous conviction or any criminal antecedents, as such they cannot be declared as a hardened or desperate or dangerous criminal. Although, the learned trial Court in its report dated 27.03.2024, has not considered the prosecution to be at fault for non-conclusion of the trial but the fact remains that the petitioners can also not be burdened with the responsibility of non-conclusion of the trial as it is admitted fact that even after elapse of statutory period of two years and till the date i.e. 27.03.2024 of submission of report by the learned trial Court statements of six official PWs and examination-in-chief of four PWs has been completed. It is also admitted fact that examination-in-chief of most of private witness has been recorded after elapse of statutory period; therefore, the prosecution cannot get benefit of the report of learned trial Court.
10. The statutory right to be released on bail on the ground of delay in the conclusion of the trial flows from the constitutional rights to liberty, fair trial and dignity guaranteed under Articles 9, 10A and 14 of the Constitution of Islamic Republic of Pakistan, 1973. The provisions of the 3rd proviso to Section 497(1), Cr.P.C. must be fashioned in a manner that is progressive and expansive of these rights of the accused, who are still under trial, and their guilt being not yet proved, has in their favour the presumption of innocence. Guidance has been sought from the case law titled “Syeda Ayesha Subhani v. The State and others” (PLD 2023 Supreme Court 648), “Muhammad Umer Shahzad v. The State and others” (2023 SCMR 1450) and “Muhammad Usman v. The State and other” (2024 SCMR 28).
11. It is also observed that this Court has to perform the neutral sacred constitutional duty to ensure the administration of justice for both the parties and has to protect their respective rights. It was the duty of the prosecution to act vigilantly to get the trial concluded within the statutory period but it remained in deep slumber and did not even bother to produce the witnesses before the learned trial Court. This conduct of the complainant speaks volume in respect of his slackness and reluctance to get the trial concluded. Therefore, keeping in view this sluggish, negligent and careless attitude of prosecution as well as complainant and in absence of any concrete material on record, mere leveling of allegations cannot be stretched so far in favour of the prosecution to deprive and bulldoze petitioners’ statutory right to be released on bail after expiry of specified period. Due to this conduct of the prosecution, conclusion of trial is not in sight in near future, as such the petitioners cannot be left at the mercy of the prosecution to rot and languish in jail merely on the ground that the petitioners are accused of heinous offence and it does not amount giving license to the prosecution to protract the trial for unlimited time according to its whims and wishes. On the other hand, there is no cavil to the proposition that release of an accused on bail does not tantamount his acquittal rather it is just shifting the custody of the accused to sureties.
12. In similar facts and circumstances, the Hon’ble Supreme Court of Pakistan in a case reported as “Ali Akbar versus State and others” (PLJ 2021 SC (Cr.C) 106), has allowed bail to the petitioners while observing as under:
“9. In these circumstances, when the trial Court has in its report, stated that the delay in the conclusion of trial is also on the part of complainant and his private witnesses, the petitioners cannot be solely held responsible for such delay particularly when the period of two years’ continuous detention expired even before framing of charge. Now even four years have passed since the arrest of the petitioners (petitioners was arrested in this case on 11.06.2016) ....”
13. 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 accused 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 petitioners 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 petitioners 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 petitioners is still awaiting his trial, therefore, his further detention in jail would serve no useful purpose for the prosecution.
14. Considering all these circumstances and seeking wisdom from the cases mentioned above, I am of the view that the petitioners has not only made out a case for their release on bail on the statutory ground of delay in the conclusion of the trial but also on merits. Hence, instant petition is accepted as a consequence whereof, the petitioners are admitted to bail after arrest subject to their 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.
15. 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.
(A.A.K.) Petition accepted
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