IJAZ ANWAR, J.- Through the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1999, the petitioner Attaullah Jan, seeks his release on bail till the final decision of main reference filed against him by the Khyber Pakhtunkhwa Ehtesab Commission, Peshawar.
2. The background of the case is that the accused/petitioner is behind the bars since 18.5.2015 in a Reference sent under the Khyber Pakhtunkhwa, Ehtesab Commission, Act, 2014. The allegations against the petitioner are that during his tenure as Housing Officer in Kohat Development Authority , he by misusing his powers through fraud, tempering in record, misrepresentation and concealing the facts from his superiors exchanged residential plots in Kohat Development Authority with fake signatures of Ex-Project Directors and, as such, caused huge loss to the public exchequer by way of corruption and corrupt practices.
3. The plea of the petitioner for his release on bail on merit has already been turned down by this Court and, now, he is seeking his release on bail on fresh ground of delay in conclusion of his trial.
4. Learned counsel for the petitioner argued that petitioner is languishing in jail since his arrest on 18.5.2015 till date, but his trial has not been concluded so far and the delay caused towards the conclusion of trial is also not due to any fault of the petitioner, rather on account of circumstances beyond his control. He argued that his bail plea was earlier dismissed by this Court in W.P No. 2351-P/2015 on 3.2.2016 with the direction to conclude the trial within three months and, after the lapse of more than three months, he, again, approached this Court for the same relief by filing W.P No. 1972/2016, but the same too, was dismissed on 4.10.2016 with the direction to the trial court to conclude the trial within one and half month. He argued that the petitioner came this Court for the third time for his release on bail by filing writ petition No. 4460-P/2017, which was also dismissed on 30.3.2016 with the direction to the trial court to proceed with the trial on day to day basis, but till date no progress has been made in the case and even the Presiding Officer of the trial Court has also been retired on 12.5.2017 and since then the post is vacant and no Presiding officer has been posted till yet. He argued that the delay has not been occasioned on the part of petitioner or any person 'acting on his behalf'. He further submitted that since the petitioner is behind the bars for the last more than two years, therefore, he is entitled to be released on bail on statutory ground.
5. Learned DPG appearing on behalf of the Ehtesab Commission opposed the grant of bail by submitting that delay has not been occurred on the part of the prosecution rather it is caused due to the conduct of the petitioner with further submission that 3rd Proviso of Section 497(1) Cr.P.C is not strictly applicable for the purpose of grant of bail to an accused facing the charges under the Khyber Pakhtunkhwa Ehtesab Commission Act. He, however, admitted that since 12.5.2017 no proceedings have been taken in this case on account of retirement of the Presiding Officer of the Court.
6. We have considered arguments of learned counsel for the parties and have gone through record of the case.
7. Of course, for the grant of bail to an accused person facing charges under the Act, ibid, provisions of Section 497 Cr.P.C are not applicable, but as held by the apex Court in the cases titled "Hamish Khan v. The NAB Lahore and others (2015 SCMR 1092), Muhammad Jameel Rahi vs. DG NAB and others' (2012 SCMR 552), Muhammad Nadeem Anwar v. NAB (PLD 2008 Supreme Court of Pakistan 645) and Anwar ul Haq Oureshi v. National Accountability Bureau )2008 SCMR 1135)", it can be pressed into service in hardship cases to provide relief to a deserving accused person, incarcerating in jail for a shockingly long period. In the case of Hamish Gul, supre, the apex court held that; "Pakistan is a welfare State where liberty of individual has been guaranteed by the constitution beside the fact that speedy trial is inalienable right of every accused person, therefore, even if the provisions of Section 497 Cr.P.C in ordinary course is not applicable, the broader principle of the same can be pressed into service in hardship cases to provide relief to a deserving accused person incarcerated in Jail for a shockingly long period. This principle may be vigorously pressed into service in cases of this nature if the object and purpose of mandatory provisions of section 16 of the National Accountability Ordinance, 1999 is kept in view."
In the light of principle laid down by the august apex Court in the referred cases, it is to be seen as to whether there is shocking delay in conclusion of the trial of the petitioner. Admittedly and as is evident from the record the petitioner is behind the bars in the instant case since 18.5.2015. Earlier, the petitioner by invoking the constructional jurisdiction of this Court had filed W.P No. 2351-P/2015 for his release on bail, which was dismissed on 03.2.2016 on merit with the direction to the trial Court to conclude the trial as early as possible but not later than three months. The trial of the petitioner, what to talk of its conclusion within the stipulated period, was not concluded after nine months, therefore, he approached this court for the grant of same relief on 20.5.2016 by filing writ petition No. 1972-P/2016, which too, was dismissed on 4.10.2016 with the direction to the trial Court for conclusion of the trial within one and a half month, in case of failure of the prosecution to conclude its evidence within the specified period, the petitioner was allowed to seek his remedy under the law.
Once again, the trial of the petitioner was not concluded within the given time, therefore, the petitioner again come to this Court and filed writ petition No. 4460-P/ 2016 on 24.11.2016, which was also dismissed on 9.3.2017, with the direction to Ehtisab Court to proceed with the trial of the petitioner on a day to day basis.
Still after the lapse of three months, the trial of the petitioner was not concluded and he again come to this court on 29.6.2016 for the same relief.
7. The perusal of available record reveals that the Reference has been filed before the trial Court on 10.11.2015 and till date, after the lapse of more than two years, the trial of the accused has not been concluded, therefore, under the law, he is entitled to the concession of bail. The perusal of all the order sheets of the trial Court reveals that majority of the adjournments have been made due to the absence of PWs and even the Presiding Officer of the Court has not taken any coercive measure either against process server/DFC concerned or the PWs, who deliberately avoiding their attendance before the court for recording their statements and there is nothing on the record which could reflect that the delay occasioned in the trial is either on the part of the accused-petitioner or any person 'acting on his behalf. At present Presiding officer of the Court is not available due to his retirement from service and the post of Judge, Ehtesab Commission is lying vacant.
8. Speedy and fair trial, no doubt, is the fundamental right of every accused person. The policy of criminal law is to bring accused person to justice as speedily as possible so that if he is found guilty he may be punished and if he is found innocent he may be acquitted and discharged. Before the insertion of Article 10-A in the Constitution, all the rights regarding expeditious and fair trial were already available in the Constitution and Criminal Procedure Code etc. The guiding principle for the grant of bail on the ground of inordinate delay was laid down by Hon'able the apex Court in the case of Riasat Ali v. Ghulam Muhammad and the State (PLD 1968 SC 353), wherein it has been held that:- "Delay in prosecution of accused amounts to abuse of process of law and is a valid ground for bailing out accused, however, delay in prosecution of each case as a ground for bail is to be weighed and judged, in each case on its merits."
Time and again, it has been held by the apex Court that if a case on statutory delay in the conclusion of trial is made out then, as a rule, bail should not be refused. The object behind this view is that any accused person is acquitted at the end of the trial then there is no compensation for the wrong caused to him due to his long confinement in prison while, on the other hand, in case if he is convicted then he has to be rearrested and put behind the bars to serve out his sentence and in that case no prejudice would be caused to the prosecution/complainant.
9. The declaration of Speedy trial has also been given in Section in section 42 of the Act, ibid, according to which each matter brought before the Court under this Act shall be disposed of within three (03) months from the date of reference being made and as per sub-section 2 of Section 42, after framing of charge for the trial of an accused, the Court shall hear the case on day to day basis, but in the case in hand such object is not likely to be achieved in the near future.
10. In view of the above legal and factual position, the petitioner is entitled to the concession of bail on the basis of delay in the conclusion of his trial. Accordingly, this petition is allowed and these are the detailed reasons of short order of even date, which is as follows:- "For reasons to be recorded later on, this writ petition is allowed and the petitioner, Attaullah Jan, is directed to be released on bail provided he furnishes bail bonds in the sum of Rupees two millions with two sureties each in the like amount to the satisfaction of Additional Registrar (J) of this Court, who shall ensure that the sureties are local, reliable and men of means.