PLJ 2024 Cr.C. (Note) 123
[Lahore High Court, Multan Bench]
Present: Sardar Muhammad Sarfraz Dogar, J.
HAQ NAWAZ--Petitioner
versus
STATE etc.--Respondents
Crl. Misc. No. 1521-B of 2024, decided on 29.4.2024.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(1)--When bail may be taken in cases of non-bailable offence--Bail--The for consideration before High Court is as to whether after expiry of certain period, benefit of proviso 3 of section 497 (1), Cr.P.C. could be available to accused in all eventualities and as to whether case of petitioner falls within definition of hardship due to prolonged and continuous incarceration of petitioner? To construe legal imports of law--The scope of 3rd Proviso to Section 497 (1), Cr.P.C. has been expounded by Hon’ble Supreme Court of Pakistan in case cited as ‘Shakeel Shah versus The State’ (2022 SCMR 1) and principles enunciated therein, have been recapitulated by Apex Court. [Para 5] A & B
PLD 2022 SC 112.
Detention Period--
----A continuous period of exceeding one year since detention of petitioner in case has been lapsed without conclusion of trial; therefore, a right to be released on bail has prima facie been accrued to petitioner--This right could be denied to petitioner only when his case falls into any of two exceptions: (a) if delay in conclusion of trial had been occasioned by an act or omission of petitioner or by any other person acting on his behalf, and (b) if petitioner is 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. [Para 6] C
Delay in Conclusion of trial--
----Statutory ground--Bail--The delay is visibly attributed to prosecution who was under legitimate duty to ensure conclusion of trial of petitioner/accused who was under trial prisoner, as such it can be unequivocally stated that petitioner cannot be blamed for delay so caused--The prosecution was required to play its role well to get trial concluded within statutory period of one year but what to say about conclusion of trial, unfortunately, prosecution has badly been failed even to get a single witness examined during statutory period and as such has committed violation of express statutory provision giving rise statutory right to petitioner for releasing on bail, which could only be curtailed when any of above noted two exceptions are in field. [Para 7] D
Statutory Ground--
----Delay in conclusion of trial--Bail--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 is still under trial, and his guilt being not yet proved, has in his favour presumption of innocence. [Para 8] E
PLD 2023 SC 648.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Pakistan Penal Code, (XLV of 1860), Ss. 324, 148, 149 r/w 337-F(v), 337-F(iii), 337-A(iii), 337-A(ii), 337-A(i), 337-F(i), 337-L(2)--Post arrest bail, grant of--Ground of--Delay in conclusion of trial--Statutory right--High 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 Courts 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 petitioner’s 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 petitioner cannot be left at mercy of prosecution to rot and languish in jail merely on ground that petitioner is an 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--Petition was accepted. [Para 9] F
PLJ 2021 SC (Cr.C.) 106 and PLJ 2018 Cr.C. 730 (DB).
Mr. Nadeem Ahmad Tarrar, Advocate for Petitioner.
Mr. Rizwan Ahmad Khan, Advocate for Complainant.
Mr. Hassan Mehmood Khan Tareen, Deputy Prosecutor General for State.
Date of hearing: 29.4.2024.
Judgment
Through this petition in terms of Section 497 Cr.P.C., Haq Nawaz son of Muhammad Riaz, the petitioner has sought post arrest bail in case FIR No. 538 dated 26.11.2022, registered for the offences under Sections 324, 148, 149 PPC read with Sections 337-F(v), 337-F(iii), 337-A(iii), 337-A(ii), 337-A(i), 337-F(i), 337-L(2) PPC added subsequently with Police Station Fateh Shah District Vehari at the instance of Liaqat Ali complainant.
2. Learned counsel for the petitioner 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 petitioner was taken into custody on 01.12.2022 whereas charge was framed on 27.04.2023; 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 petitioner solely cannot be held responsible for delay in the conclusion of the trial; that there is no previous record of conviction of the petitioner and in the circumstances of the case, the petitioner cannot be held to be hardened, desperate or dangerous criminal. Hence, the petitioner is 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 petitioner has also contributed in the delay of conclusion of trial and that the petitioner is a 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.
4. Arguments heard and record perused with the able assistance of learned counsel for the petitioner, learned counsel for the complainant as well as learned DPG appearing on behalf of State.
5. 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 accused in all eventualities and as to whether the case of the petitioner falls within the definition of hardship due to prolonged and continuous incarceration of the petitioner? 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 criminal or is accused of an act of terrorism punishable with death or imprisonment for life.
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;
(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.
(vi) 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
(vii) 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.
6. Lest this Court passes any finding on the role of the petitioner, which may prejudice the case of the parties during the on-going trial before the learned trial Court, and without commenting upon the merits of the case, it is observed that the petitioner was arrested in this case on 01.12.2022 and charge against him was framed on 27.04.2023. The petitioner is admittedly not involved in the offence punishable with death, therefore, the right to be released on bail on the basis of the lapse of statutory period of one year from the date of detention had been accrued to the petitioner on 01.12.2023. As such, it can be safely observed that a continuous period of exceeding one year since the detention of the petitioner 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 petitioner. This right 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 been 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 to be a hardened, desperate or dangerous criminal, or accused of an act of terrorism punishable with death or imprisonment for life.
7. Now, this Court has to evaluate as to whether case of the petitioner attracts any of the above noted exceptions or not? In this case, the perusal of report dated bearing No. 112 dated 22.03.2024 reveals that after framing of charge, the learned trial Court pointed out as many as twelve dates of hearing i.e. 08.06.2023, 22.06.2023, 20.07.2023, 14.09.2023, 20.09.2023, 26.09.2023, 20.11.2023, 04.12.2023, 18.12.2023, 15.01.2024, 09.03.2024 and 21.03.2024 when the PWs were in attendance but the case was adjourned on the request of accused persons. However, it is noted that before completion of statutory period of one year, only seven dates of hearing i.e. 08.06.2023, 22.06.2023, 20.07.2023, 14.09.2023, 20.09.2023, 26.09.2023 and 20.11.2023 were fixed by the learned trial Court for recording of evidence. On 08.06.2023, although the complainant alongwith witnesses was present but the lawyers were on strike and case was adjourned for 22.06.2023. On the said date i.e. 22.06.2023, PWs were present but the case was adjourned on the joint request of the parties. On 20.07.2023, the complainant alongwith one witness namely Shoukat Ali was in attendance while no other PW was present and the learned trial Court had to issue non-bailable warrants of arrest through SHO/DSP Circle Burewala and the case was adjourned for 14.09.2023. On the said date i.e. 14.09.2023, although the complainant alongwith PWs was in attendance but their statement were not recorded plainly just because of strike of lawyers and the learned trial Court had not mentioned any other reason for adjourning the case for 20.09.2023. On the fixed date i.e. 20.09.2023, again the situation was same as the complainant and two PWs were present but due to strike of lawyers, the case was adjourned for 26.09.2023. This situation persisted on the next date of hearing i.e. 26.09.2023. On 20.11.2023, which was the date fixed by the learned trial Court prior to elapsing of statutory period, complainant alongwith PWs were present but learned trial Court has not mentioned the reason for adjourning the case and plainly Adjourned the case for prosecution evidence for 04.12.2023. As such, the minute perusal of these dates of hearing fixed by the learned trial Court for evidence prior to elapsing of statutory period, has emphatically showed that not even a single date has been sought on behalf of accused persons rather the same has somehow mechanically been given by the learned trial Court. It is also worth mentioning here that even on 04.12.2023, 18.12.2023, the learned trial court has not mentioned the valid reason for adjourning the case. As per Nadeem Samson’s case, (mentioned supra), 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. However, in the case in hand, prior to completion of statutory period of one year, not even a single date of hearing has been sought by the accused side. Therefore, the learned trial Court was not justified in reaching to the conclusion that delaying tactics have been played by the accused persons. On the other hand, the delay is visibly attributed to the prosecution who was under legitimate duty to ensure conclusion of trial of petitioner/accused who was under trial prisoner, as such it can be unequivocally stated that petitioner 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 one year but what to say about conclusion of trial, unfortunately, the prosecution has badly been failed even to get a single witness examined during the statutory period and as such has committed violation of express statutory provision giving rise statutory right to the petitioner for releasing on bail, which could only be curtailed when any of above noted two exceptions are in field. 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 petitioner cannot be declared as a hardened or desperate or dangerous criminal.
8. 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 is still under trial, and his guilt being not yet proved, has in his 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).
9. 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. 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 petitioner’s 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 petitioner cannot be left at the mercy of the prosecution to rot and languish in jail merely on the ground that the petitioner is an 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.
10. 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 petitioner 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 petitioner 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 petitioner (petitioner was arrested in this case on 11.06.2016) ........”
11. 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 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.
12. Considering all these circumstances and seeking wisdom from the cases 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. Hence, 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.
13. 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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