AQEEL AHMED ABBASI, J.---Being aggrieved and dissatisfied by the order dated 12-4-2011 passed by the learned Special Judge (Central-II) Karachi in Crime No,17 of 2010 under Section 406/409/ 420/109/34, P.P.C. Read with section 5(2) PCA, 1947 registered at P.S., FIA Crime Circle, Karachi, whereby the bail application of the applicant was declined, the applicant has approached this Court for his release by seeking bail under section 497, Cr.P.C.
2. Brief facts relevant for the purposes of disposal of instant bail application and the prosecution story as stated in the F.I.R. Is as follows:-- "During the course of investigation in respect of alleged corruption and corrupt practices in the Pakistan Steel Mills it transpired that trader dealers in collusion with the top management of Pakistan Steel Mills namely Mueen Aftab Shaikh, the then Chairman, Sameen Asghar, the then Director Commercial and Rasool Bux Phulpoto, the then Director Admn and Marketing/Managing Director fraudulently, dishonestly with ulterior motives caused wrongful loss to the government exchequer and wrongful gain to the said companies to the tune of millions of rupees regarding sale purchase of various finished products including long and flat products of Pakistan Steel Mills for the period 2008-2009. The details of beneficiaries of billet and HR are as follows:-- S# Name of Trader Dealers of Billet S# Name of Trader Dealers of HR
1. M/s Aramis International Trading Co. (4066)
1. M/s ARI Steel (4065)
2. M/s Azam International Trading (4068)
2. M/s Jeddah Steel (3808)
3. M/s Iftikhar and Co. (4160)
3. M/s Al-Rehman Steel Traders (770)
4. M/s Hussain Enterprises(4047)
4. M/s Razzak Associates (4000)
5. M/s Mehran Traders (5107)
5. M/s Lasani Steel Traders (4042)
6. M/s Zaman Traders (5122)
6. M/s AB Associates (1238)
7. M/s Ahmed Hassan Jeewani (977)
7. M/s AM Enterprises (1831)
8. M/s Kanfour Enterprises (1967)
8. M/s Waseem Steel Enterprises (1783)
9. M/s Adeel Traders (5129)
9. M/s Sher Muhammad and Co.(1276)
10. M/s. Mughal Traders (5131)
10. M/s Malik Sultan Mahmood and Sons (1017)
In November 2008, the prices of Pak Steel Product were reduced up to 35% in comparison to local and International Market but when local and international market was at higher side the prices were not increased by Pakistan Steel Mills and in this way a financial loss amounting to billions of rupees was caused to Pakistan Steel.
Thus the top management of Pakistan Steel Mills namely Mueen Aftab Sheikh, the then Chairman, Sameen Asghar, the then Director Commercial and Rasool Bux Phulpoto, the then Director Admn.
And Marketing/Managing Director, by abusing their official position, with common objective and criminal intention, fraudulently and dishonestly with ulterior motives caused pecuniary wrongful loss to Pakistan Steel and corresponding wrongful gain to the directors/owners of the above noted accused firms and others, thereby committed the offences punishable under sections 406/409/420/109/34, P.P.C. r/w section 5(2) of PCA, 1947."
3. Challan of the case has been submitted, wherein the accused has been shown in jail custody in other connecting F.I.Rs, Nos.36, 37, 38, 39/2009 and 1 of 2010 of FIA Crime Circle, Karachi and facing trial.
4. It is contended by the learned counsel for the applicant that the applicant is innocent and has been falsely implicated in the instant crime, which was allegedly committed during the year 2008 and 2009, whereas the FIR to this effect has been lodged on 16-7-2009 after considerable delay, which has not been explained. Per learned counsel, all the accused persons have been granted bail except the absconding accused, whereas the applicant is behind the bar since 13-1-2010, whereas he was arrested in other connecting F.I.R., whereas in the instant crime he has been shown in jail custody since 5-8-2010. Learned counsel for the applicant submits that though the applicant has a good prima facie case. On merits, however, he will press the bail on the ground of statutory delay as the applicant/accused is behind the bar for a period of one and half years now, whereas only interim challan was submitted on 9-8-2010 by the prosecution, which has been treated as final challan by the learned trial Court on 14-5-2011, and not a single witness has been examined so far. On the request of learned counsel for the applicant, R&P of the case was summoned, where after, the applicant submitted the summary of order sheets of the trial Court, copy of which was supplied to learned Standing Counsel for examination and verification. Learned counsel for the applicant referred to the entire order sheet of the trial Court and submitted that the applicant who was in jail custody was being produced in Court on every date and never committed any default nor the matter was ever adjourned at the request of the applicant/accused. It is contended by the learned counsel that since very inception the matter is being adjourned either on account of absence of Presiding Officer, non-submission of the final challan by the prosecution, issuance of notices to the absconding accused persons or absence of other accused persons or their counsel other than the applicant/accused, hence the delay cannot be attributed to the applicant. It is further contended that pursuant to jail report called in other connecting identical F.I.R. No,37/2009 it has already been conceded that the accused is not a desperate, dangerous and hardened criminal, whereas he is neither previously convicted nor required in any crime punishable with death or life imprisonment, hence fulfils the requirements for seeking bail on the ground of statutory delay as per recent amendment introduced in Section 497, Cr.P.C. Learned counsel further argued that though the ground of hardship and non-statutory delay is also available to the applicant as in spite of considerable lapse of time neither charge has been framed nor any prosecution witness has been examined, whereas the applicant, is behind the bar for more than one and half years, however, in view of the recent amendment in section 497, Cr.P.C. The applicant has a clear cut case to be enlarged on bail on this ground alone. Learned counsel has vehemently argued that the bail to the applicant cannot be denied in any other ground except mentioned in, newly substituted fifth proviso to section 497(1), Cr.P.C. In support of his contention, learned counsel has relied upon the case-law note as under:
1. On the ground of statutory delay under the 2011 amendments in the Criminal Procedure Code, 1898.
Irfan Yaqoob v. The State SBLR 2011 Sindh 1205
2. On the ground of statutory delay in cases in which no charge was framed.
1) Mushtaque alias Pola v. The State 2002 PCr.LJ 412 2) Muhammad Khan v. State 1985 PCr.LJ 958 3) Arshad Hussain v. The State PLD 2001 Karachi 211 4) Walayat v. The State 2000 YLR 830 5) Ubedullah v. The State 2006 YLR 2242
3. On the ground of statutory delay in cases in which no witnesses were examined or evidential stage.
1) Anwar Ali and another v. The State 2002 PCr.LJ 186 2) Ghulam Abbas v. The State 1997 MLD 1743 3) Rahim alias Rahmak and another v. The State 1998 PCr.LJ 821 4) Safdar Hussain v. The State 1996 MLD 757 5) Karimi Rahmatullah y. The State 1993 PCr.LJ 733 6) Shafaqat Ali v. State 1998 MLD 2055
4. Bail cannot be denied on the ground that the case Was delayed due to the absconsion of the co-accused.
1) Muhammad Tariq @ Tani v. The State PLD 1979 Lahore 511 2) Juwan v. The State 2005 YLR 2936 3) Zahid Hussain Shah v. The State PLD 1995 SC 49 4) Abdul Hameed v. The State NLR 1998 Criminal 611 5) Arshad Hussain v. The State PLD 2001 Karachi 211 6) Sher Ali alias Sheri v. The State 1998 SCMR 190
5. Applicant is not a hardened, desperate or dangerous criminal. Therefore, bail cannot be denied on the ground of statutory delay."
1) Moundar and another v. The State PLD 1990 SC 934 2) Zahid Hussain Shah v. The State PLD 1995 SC 49 3) Ghulam Sarwar v. The State 1990 SCMR 1045 4) Muhammad Asif v. The State PLD 1996 Karachi 385 5) Muhammad Aslam v. The State 1997 MLD 1202 6) Rashid Ahmad and 2 others v. The State 1994 PCr.LJ 801 (Lahore)
7) Muhammad Zaman and another v. The State PLD 1992 Peshawar 156 8) Jalal v. The State 1987 PCr.LJ 573 .
5. Conversely, learned Standing Counsel, duly assisted by Gulsher Mugheri, I.O. Of the case, after having examined R&P and the summary of the order sheet of the trial Court have frankly did not controvert the submission of the learned counsel for the applicant to the extent that delay of the trial in the instant case cannot be attributed to the applicant. It has been further acknowledged that there is no adverse report against the applicant whereby it could be said that the applicant is a hardened, desperate and dangerous criminal nor as per record he is previously convicted for an offence punishable with death or imprisonment for life or accused of an act of terrorism punishable with death or imprisonment for life. However, learned Standing Counsel has raised an objection to the maintainability of instant bail application on the ground of statutory delay, which according to him was not raised before the learned trial Court and has been raised for the first time before this Court. It has been contended that bail of the applicant was dismissed on merits, therefore, no fresh ground can be raised before this Court for first time without approaching the trial Court. Per learned counsel, under the circumstances, it will be appropriate if applicant may be directed to approach the trial Court and raise the ground of statutory delay for seeking bail.
6. While responding to such objection learned counsel for the applicant has vehemently opposed such contention and submitted that no such objection was ever raised by the learned Standing Counsel during the pendency of this bail application, whereas, it is, only in view of the observations of this Court made during the course of hearing of this bail application whereby the counsel for the applicant was required to satisfy this Court on this account. It has been contended by the learned counsel that at the time of hearing of the bail application before the trial Court this groundof statutory delay was not available to the applicant, however, it was available to the applicant while filing bail application before this Court as one of the- grounds, which has been now pressed before this Court. Per learned counsel, since no objection was raised by the prosecution in this .Regard and the R&P of the trial Court was summoned by this Court to verify the 'contention of the applicant regarding delay caused by the prosecution, therefore, such objection at this stage is unwarranted.
It is further contended that instant bail application was filed before this Court on 21-6-2011 and since then it is pending disposal, whereas applicants is an old man of advance age suffering from heart ailment who is behind the bars for more than one and half years now. It has been further contended that no useful purpose will be served if the applicant will approach the trial Court on the ground of statutory delay as the learned trial Court has already refused bail to the applicant on statutory ground in connecting F.I.R No,38 of 2009. Moreover, per learned counsel, during pendency of this bail application there was no Presiding Officer available, hence no useful purpose could have been served if the applicant would have approached the learned trial Court. In support of his contention, the learned counsel has placed on record the order dated 2-8-2011 of the. Trial Court passed in the connecting F.I.R. No,38 of 2009 whereby the bail on the ground of statutory delay has already been declined by the trial Court. It has been further contended that this Court has the discretion to entertain a fresh ground particularly ground of statutory delay, whereby the Court has to examine as to whether the applicant falls within the parameters as laid down in the recently substituted fifth proviso to subsection (1) of section 497, Cr.P.C. In support of his contention, learned counsel has placed reliance on the following case-laws
1. Zahid Yousuf Gil alias Fazal Hussain v. The State 2008 PCr.LJ 131
2. Mulazam Hussain v. The State 1988 PCr.LJ 481
3. Muhammad Aslam v. The State 1990 SCMR 1290
4. Rais Wazir Ahmad v. The State 2004 SCMR 1167
5. Zafar Ali and others v. The State 2006 PCr.LJ 612
6. Naseer Ahmed and another v. The State 2009 PCr.LJ 1430
7. Muhammad Sadiq v. The State 1989 MLD 4084
7. I have heard both the learned counsel, perused the record and the case law relied upon by the learned counsel for the applicant. The effect of the amendments in Section 497 through Act VIII of 2011 dated 20-4-2011, has recently been examined by the hon'ble Supreme Court in. C.P.No,620-K of 2011, wherein the lordships while dealing with the bail application on the ground of statutory delay have held as under:- "6. We have carefully considered the submission made before us by the learned ASC and Addl.
D.P.G.A and perused the material placed on record. Indeed, vide two earlier orders dated 17-12- 2009 and 2-11-2010, passed in C.P. No,D-2550/2009 an 1297/2010 respectively, petitioner was refused bail up to the level of High Court, with directions for the Accountability Court to conclude the trial preferably within a period of three months, but these facts by itself are not sufficient to deny the benefit of section 3 of Act VIII of 2011 dated 20-4-2011 to the petitioner, which came into force later on and has given him an independent right for grant of bail on the ground of statutory delay, subject to certain conditions provided therein. For convenience sake, the said newly introduced provision of law is reproduced as under:-- "3. Amendment of section 497, Act V of 1898. - In the said Code, in section 497, in subsection (1) -
(i) in the first proviso, after the word "Years the words "or any woman" shall be inserted;
(ii) the second, third and fourth provisos shall be omitted; and
(iii) in the fifth proviso, for the full stop at the end a colon shall be substituted and thereafter the following provisos shall be added, namely: 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 trialfor such offence has not concluded; or
(b) Who, being accused or an offence punishable with death, has been detained for such offence 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 forgoing 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."
6. Reverting to the proceedings of the case at hand before the Accountability Court, we find there is no denial of the fact that even before framing of charge, for no fault on his part, the petitioner remained in judicial custody, for a period of over 11 months and even thereafter, as discussed above, for delay in the proceedings of the case for a period of over nine months, he is not responsible to the extent that he can be denied the benefit of above reproduced provision of law, which entitles him for grant 'of bail if he had remained in continuous custody for a period exceeding one year, as in the instant case.
7. This being the position, this civil petition is converted into appeal and allowed, impugned order dated 20-6-2011 is set aside and the petitioner is admitted to bail on his furnishing solvent surety in the sum of Rs,1.5 million and P.R. Bond in the like amount to the satisfaction of the trial Court."
8. The honourable Supreme Court of Pakistan in the case of Nazir Hussain v. Ziaul Haq and others reported as 1983 SCMR 72 while dealing with the bail application on the ground of statutory delay has observed as under: "9. The 'ground of delay for grant of bail in cases falling within the prohibition contained in subsection (1) of section 497, Cr. P. C. Before the effective amendment, was undoubtedly controlled by the discretion of the Court concerned. The facts varied from case to case and accordingly the discretion exercised was creating some anomalies. That, is why the Legislature intervened and the law was made more certain. One of the changies affected in the statute from the previous practice in the exercise of discretion, was that the grant of bail on expiry of certain specified period and under certain conditions was made a matter of right and not only of discretion. We do not agree with the learned counsel that the use of the word 'shallin the third proviso, is in the meaning of 'may'. Learned counsel failed to notice that while in first proviso the word 'mayhas been used, in the second and third the word 'shallhas been used with a view to highlight it. Moreover, reading 'mayfor the word "shall in third proviso would be in large majority of cases to the detriment of the accused and his liberty, when it becomes due in the context of bail.
We accordingly repel the argument of the learned counsel and hold that word 'shallin third proviso will have to be read in its ordinary sense. That being so, there is nothing in the entire proviso, its main part as also sub-clause (b) to show the grant of bail on ground of delay in cases covered thereunder has been left (in a general way) to the discretion of the Court. We also do not agree with the argument that the matter being entirety of the discretion of the Court it is empowered to take into account thq expected/apprehended delay. "
9. Similarly, in another case of Zahid Hussain Shah v. The State, reported as PLD 2005 SC 530, the honourable Supreme Court of Pakistan once again, while dealing with the bail application on the ground of statutory delay has observed; "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 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. In the case of Wazir Khan v. State 1983 SCMR 427, the petitioner. Was refused bail by the High Court under the 3rd proviso to section 497, Cr.P.C. On the ground that the delay in the trial had occasioned on account of abscondence of the co-accused in the case.
10. From perusal of the record and the diary sheet of trial Court, it appears that delay in trial before the trial Court cannot be attributed to the applicant. On the contrary, it is noted that for most of the times, on the various dates of hearing, either the Court was vacant or prosecution witnesses were not in attendance. Considerable period of time i,e, more than one and half years has lapsed but the trial has not yet been proceeded, even the charge has not been framed so far. From perusal of the newly added proviso to section 497, Cr.P.C., it can safely be concluded that if an accused of an 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, he would be entitled to bail on the ground of statutory delay, provided that the accused is not a previously convicted offender for an offence punishable with death or imprisonment for life or 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. In the instant case; admittedly, the applicant is behind the bars for more than one and half years, whereas, the delay has not occasioned on his part. On the contrary, delay is attributable to the prosecution which fact has also been conceded by the learned Standing Counsel and the I.O.
Of the case. It has been further conceded that the applicant is not previously convicted offender nor required in any crime punishable with death or life IA imprisonment.
11. As regards the objection of the learned Standing Counsel,. Whereby it has been contended that since the statutory ground was not raised before the learned trial Court, who has declined the bail to the applicant on merits hence the same cannot be raised directly before this Court. The learned counsel for the applicant has given a detailed explanation whereby it has been stated that the ground of statutory delay was not available at the time of dismissal of the bail application before the trial Court. However, per learned counsel, at the time of filing instant bail application before this Court, both on merits, as well as the ground of statutory delay, were available to the applicant. It has been further stated that this fact was in the knowledge of the respondent, who did not raise any objection to the ground of statutory delay, whereas the matter was taken up for hearing on several dates, however, on account of paucity of time and the, adjournments sought by the respondents could not be concluded. Since the learned counsel for the applicant has specifically argued his case on the ground of statutory delay, the R&P of the trial Court was summoned by consent of both the counsel where after the applicant submitted a detailed summary of the order sheet of the trial Court to show that neither the trial has commenced nor the charge has been framed so far in spite of lapse of more than one and half year. It has also come on record that the delay is not attributable to the applicant. The applicant is neither hardened, desperate or dangerous criminal nor is accused of an act of terrorism punishable with death or imprisonment for life, which facts have already been conceded by the learned Standing Counsel and the I.O. Of .The case. The trial Court, in other connecting F.I.Rs, of similar nature against the applicant including F.I.R. No,38/2009 has already declined the bail to the applicant on the ground of statutory delay, merely on the ground that since the applicant is involved in embezzlement of huge amount of money due to misuse of powers being Chairman of Pakistan Steel Mills and has caused huge losses to the Government exchequer, therefore, he is not entitled to be released on bail. In view of peculiar facts of this case as noted hereinabove, I am of the view that the counsel for the applicant has made Court a case whereby discretion vesting in this Court can be exercised to give effect to the beneficial statutory amendments brought in section 497, Cr.P.C. By considering the ground of statutory delay without requiring the applicant to once again approach the trial Court, who has already expressed its mind by declining the bail to the applicant on the ground of statutory delay in the connecting F.I.Rs involving similar crime. Moreover, there is no possibility of the trial to conclude in near future as in spite of lapse of more than one and half years the trial has not yet proceeded and even the charge has not been framed so far, whereas the prosecution is either requesting for adjournments or not proceeding to record the evidence .Of the prosecution witnesses on one pretext or the other. Accordingly, the objection of the respondents in this regard is hereby rejected.
12. After having examined the effect of the recent amendments brought in section 497, Cr.P.C.
Through Act VIII of 2011 dated 20th April, 2011 and the dicta laid-down by the Hon'ble Supreme Court in the above referred cases, I am of the view that the applicant has made out a case to be released on bail on the ground of statutory delay. Accordingly, applicant is admitted to bail subject to furnishing solvent surety in the sum of Rs,2.5 million and P.R. Bond in the like amount to the satisfaction of the learned trial Court.
13. Needless to observe that the observations made herein are tentative in nature and shall not prejudice the merits of the case which may be examined strictly in accordance with law and on the basis of evidence on record.
14. However, it is clarified that if, the applicant misuses the concession of. Bail in any manner, the learned trial Court shall be at liberty to proceed against the applicant as per law.