Through this petition under section 497 of the Cr.P.C., the petitioner namely Waleed Hassan seeks post arrest bail in case FIR No.117 of 2010 dated 26.03.2 010, registered at police station Cantt, District Bahawalpur , in respect of offences under sections 324, 334, 336, 337-A(i), 337-F(i), 337-L(1), 148 and 149 PPC.
2. The allegation as against the petitioner , namely Waleed Hassan, culled from the evidentiary material produced before the Court, is that he, while armed with a hockey stick, gave a blow of the same hitting on the back of neck of Qasim Anjum Ansari, the injured of the case and brother of the complainant of the F .I.R.
3. The petitioner previously applied for bail after arrest, which petition came up for hearing before this Court on 13.01.2020 and was dismissed through an order passed in Crl. Misc. No. 3459-B/2019/BWP . The petitioner approached the august Supreme Court of Pakistan seeking post-arrest bail, however , did not press the said application and withdrew the same on 19.02.2020. Thereafter , the petitioner on 31.01.2020, moved an application seeking declaration of his juvenility at the time of the crime, having been born on 18.10.1992, according to the birth certificate and the school record and the occurrence having taken place on 26.03.2010; the petitioner claiming to be less than eighteen years of age at the time of occurrence. After examining the birth certificate and the school record, the learned trial court vide its order dated 24.03.2020 declared the petitioner to be a child and a juvenile offender as defined by Juvenile Justice System Act, 2018. Thereafter , the petitioner has moved the instant bail application on the basis of statutory ground of delay in the conclusion of trial even after the lapse of a period of more than eight months from the date of arrest of the petitioner as he was arrested on 13.1 1.2019.
4. I have heard the learned counsels for the parties, the learned Deputy Prosecutor General and with their able assistance have perused the record.
5. Our great country , the Islamic Republic of Pakistan is a signatory to the Convention on the Rights of Child (CRC). Article 37 of the CRC asks state parties to ensure the following: "(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;
(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily . The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;
(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular , every child deprived of liberty shall be separated from adults unless it is considered in the child' s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;
(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority , and to a prompt decision on any such action."
In light of the above and pursuant to Article 25 (3) of the Constitution of Islamic Republic of Pakistan 1973 , Pakistan is under an obligation to safeguard and protect the rights of children. The Juvenile Justice System Act 2018 has been promulgated to deal with these issues and its predecessor the Juvenile Justice System Ordinance, 2000 has thereby been repealed. It is important to highlight that the Juvenile Justice System Act, 2018 came into force on 18.05.2018 when it received the assent of the President of Islamic Republic of Pakistan.
The occurrence in this case took place on 26.03.2010 however the petitioner was arrested on 13.11.2019, when the Juvenile Justice System Ordinance, 2000 had been repealed and the Juvenile Justice System Act, 2018 had come into force since 18.05.2018. The Juvenile Justice System Act,2018 is retrospective in its application as it appears from a plain reading of subsection (5) of section 4 of the said Act, which provides that on the commencement of this Act all cases pending before a trial court in which a juvenile is accused of an offence shall stand transferred to the Juvenile Court having jurisdiction ,therefore, section 6 of the said Act may equally be invoked in cases which were registered prior to the promulgation of the Juvenile Justice System Act, 2018. Section 4 of the Juvenile Justice System Act, 2018 reads as under: "4. Juvenile Court.- The Government in consultation with the concerned High Court shall [by notification in the official Gazette] establish or designate one or more Juvenile Courts, within a period of three months of the commencement of this Act.
(2) A Juvenile Court may be established for one or more sessions divisions and in that case the Juvenile Court may hold trial of a case at such place as the High Court may specify
(3) No person shall be appointed as a Judge of a Juvenile Court unless he is or has been a Sessions Judge or an Additional Sessions Judge or a Judicial Magistrate vested with powers under sectio n 30 of the Code or a practicing advocate who has at least ten years standing at Bar and the latter shall be appointed on such terms and conditions as the Government may determine in consultation with the concerned High Court.
(4) The Juvenile Court shall have exclusive jurisdiction to try cases in which a juven ile is accused of commission of an offence.
(5) Subject to sub-section (4), on commencement of this Act all cases pending before a trial court in which a juvenile is accused of an of fence shall stand transferred to the Juvenile Court having jurisdiction.
(6) The Juvenile Court shall not, merely by reason of a change in its composition or transfer of a case under sub- section (5) be bound to recall or re-hear any witness who has given evidence and may act on the evidence already recorded.
(7) If any court taking cognizance of an offence finds that an accused brought before it is a juvenile, it shall transfer his case to the Juvenile Court for further proceedings.
(8) ................
(9) ...................
(10) ..................."
If the object of an Act, which is to be gathered from the words of the enactment, itself requires that the Act should apply to pending proceedings, it will be so applied, unless there is a saving clause in the Act itself to the effect that it would not apply to pending proceedings. The procedure to be followed in the trial of an offender must be in accordance with the law of procedure in force on the date of the inception of the trial, and not the date of the commission of the offence. Sir Peter Benson Maxwell in the book "Interpretation of Statutes" similarly states that it is a fundamental rule of English Law that no statute will be construed to have a retrospective operation unless such construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication, as does in the case of Juvenile Justice Act, 2018. The rule is stated thus: "But if the language is plainly retrospective it must be so interpreted. At the same time, regard must be paid to the dominant intention."
William Feilden Craies in the book "Craies on Statute Law" has similarly stated that the general rule of law is that statutes are not to operate retrospectively unless there is some declared intention of the Legislature , clear or unequivocal, or unless there are some circumstances rendering it inevitable that we should take the other view, that 'the new law ought to be construed so as to interfere as little as possible with vested rights but that the presumption against the retrospectively can be rebutted by express enactment or by necessar y implication from the language employed by the amending statute . He observes that sometimes the statutes, although not intended to be retrospective, will in fact have a retrospective operation. In Duke of Devonshire v. Barrow , etc. ((1877) 2 Q B D 286, 289) two persons had entered into a contrac t, and afterwards a statute was passed, which, according as Cockburn, C. J., said, engrafted an enactment upon existing contracts and thus operated to produce a result quite different from the original intention of the contracting parties. Thus the statute had in fact a retrospective operation.
Similarly if a statute is passed which renders the performance of a contract impos sible, the rule of law is that the contract is frustrated by supervening impossibility and consequently the statute in such a case operates retrospectively . William Feilden Craies gives similar examples of other statutes which act retrospectively though, it is a well-recognized rule that statutes should be interpreted, if possible, so as to respect vested rights. There is, however , no vested right in procedure. Alterations in the form of procedure are always retrospective unless there is some good reason or other why they should not be. [Gardner v. Lucas ((1878) 3 A C 582) and Rex v.
Southampton Income-tax Commissioners ((1916) 2 K B 249)].
6. It has been noticed by this Court that the only ground agitated by the learned counsel for the petitioner before this Court is the delay in conclusion of trial of the petitioner's case. There is no cavil to the fact that the petitioner has been declared to be a child and a juvenile offender as defined by Juvenile Justice System Act, 2018, being below 18 years of age at the time of occurrence. The only question that is to be determined in his case is, whether he has incurred any act or omission on his part which has occasioned the delay in conclusion of the trial. The learned counsel appearing on behalf of the father of the injured witness argues that much delay has been caused on the part of the petitioner in having himself declared a juvenile offender and had the petitioner not made the application, the delay would have not been caused. This argument is not acceptable. Making of an application for being declared juvenile cannot be termed a factor that caused delay in conclusion of the trial rendering such person disentitled to bail. Such act or omission must be pregnant with the mala fide on the part of the petitioner/juvenile offender . This factor is not present in the case of petitioner . The August Supreme Court of Pakistan has held that the determination of age of an accused who appears or claims to be a juvenile is, therefore, initially the statutory responsibility of the Police and also of the court, hence the time spent in obtaining the said finding or declaration by the court cannot possibly be termed as delay caused in the trial by the accused, so as to deprive him of his right to bail on the ground of statutory delay . Reliance in this regard is placed on the case of "Saleem Khan. Versus The State, etc" (Criminal Petition No.251-L of 2020) wherein the August Supreme Court of Pakistan has enunciated the following principle: - "Determination of age of an accused who appears or claims to be a juvenile is, therefore, initially the statutory responsibility of the Police . In the absence of which, the court of general jurisdiction enjoys the power to determine the age of the accused, and if declared to be a juvenile , transfer the case to the concerned Juvenile Court. In the instant case, the Police had not carried out any such exercise and therefore the court on the application of the petitioner issued the required declaration. The determination of age by the court is also a statutory obligation, hence the time spent in obtaining the said finding or declaration by the court cannot possibly be termed as delay caused in the trial by the accused, so as to deprive him of his right to bail on the ground of statutory delay . Any such determination of age by the court is a statutory requirement and forms part of the trial.(emphasis supplied)"
7. There is a slight difference in the provisions of the Juvenile Justice System Ordinance, 2000 (since repealed) and of the Juvenile Justice System Act, 2018 ("Juvenile Act") regulating the grant of bail on the ground of delay in the conclusion of trial. It is important to reproduce sections 10 (7) of the Juvenile Justice System Ordinance, 2000 and sections 6 (5) of the Juvenile Justice System Act, 2018 ("Juvenile Act") which repealed the Juvenile Justice System Ordinance, 2000. Section 10 (7) of the Juvenile Justice System Ordinance, 2000 provided as under: "............... (7) Notwithstanding anything contained in the Code and except where a juvenile court 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 or in exercise of any right or privilege under any law for the time being in force, a child who, for commission of an of fence, has been detained, shall be released on bail,
(a) if, being accused of an offence punishable with death has been detained for such an offence for a continuous period exceeding one year and whose trial for such an of fence has not concluded;
(b) if, being accused of any offence punishable for imprisonment for life has been detained for such an offence for a continuous period exceeding six months and whose trial for such of fence has not concluded; or
(c) who, being accused of any offence not punishable with death, or imprisonment for life, has been detained for such an offence for a continuous period exceeding four months and whose trial for such an offence has not concluded: Provided that where a child of the age of fifteen years or above is arrested, the Court may refuse to grant bail if there are reasonable grounds to believe that such child is involved in an offence which in its opinion is serious, heinous, gruesome, brutal, sensational in character or shocking to public morality or he is a previous convict of an offence punishable with death or imprisonment for life."
Section 6 (5) of the Juvenile Justice System Act, 2018 provides as under:- "6.Release of a juvenile on bail.-...................
(5) Where the Juvenile Court is of the opinion that the delay in the trial of a juvenile has not been occasioned by an act or omission of such juvenile or any other person acting on his behalf or in exercise of any right or privilege under any law for the time being in force, such juvenile shall be released on bail if he has been detained for a continuous period exceeding six months and whose trial has not been completed."
The proviso under section 10(7) of the erstwhile Juvenile Justice System Ordinanc e, 2000 stating that bail may be refused to a juvenile offender if he is 15 years of age or above and there are reasonable grounds to believe that the juvenile is involved in a heinous offence or is a previous convict for an offen ce punishable under death or imprisonment for life, has been repealed under the new Juvenile Justice System Act, 2018. Section 6(5) of the Juvenile Justice System Act, 2018 provide s that the juvenile offender will be entitled to be released on bail if he has been detained for a continuous period exceeding six months while his trial has not been concluded, unless the delay has been occasioned by the act or omission of such a juvenile. Reliance in this regard is also placed on the case of "Saleem Khan. Versus The State, etc" (Criminal Petition No.251-L of 2020) wherein it has been held as under :.
"The period of statutory delay of one year for offences punishable for death under the Juvenile Ordinance has been reduced to six months under the Juvenile Act and the proviso under section 10(7) of the erstwhile Ordinance stating that bail may be refused to a juvenile offender if he is 15 years of age or above and there are reasonable grounds to believe that the juvenile is involved in a heinous offence or is a previous convict for an offence punishable under death or imprisonment for life, has been repealed under the new Juvenile Act. Section 6(5) of the Juvenile Act provides that the juvenile will be entitled to be released on bail if he has been detained for a continuous period exceeding six months while his trial has not been concluded, unless the delay has been occasioned by the act or omission of such a juvenile. The petitioner was arrested on 7.06.2018 and the petitioner was declared a juvenile on 27.11.2019 the trial has still not been concluded. The second bail application on statutory ground was moved on 11.12.2019 which is much after the period of six months from the date of arrest as provided under section 6(5) of the Juvenile Act. For the above reasons the petitioner being a juvenile offender was entitled to bail on statutory ground."
Admittedly , the petitioner was arrested in this case on 13.11.2019, when he was taken into custody by the investigating officer and now a period of nearly eight months has elapsed and he is still behind the bars without the conclusion of trial. In the instant case in order to find out the reasons of the non-conclusion of trial, a report was also requisitioned from the learned trial court. The perusal of the report submitted by the learned trial court dated 19.06.2020 also shows that none of the reasons assigned therein for the delay in the conclusion of the trial can be attributed to the petitioner or to his couns el. The order sheet of the learned trial court shows that learned trial court vide its order dated 24.03.2020 declared the petitioner to be a child and a juvenile offender as defined by Juvenile Justice System Act, 2018. Furthermore no proceedings could be undertaken by the learned trial court since 06.04.2020 due to the lockdown prevailin g in the province as a measure against the spread of the severe/acute respiratory syndrome identified as Corona Virus disease 2019 (Covid-19), which has taken a shape of pandemic.
The case has now been adjourned by the learned trial court for the said reason without proceeding with the trial in any manner . The learned counsel appearing on behalf of the father of the injured witness submits that the complainant of the F.I.R. is currently residing in the United Sates of America and shall not be returning to Pakistan for at least another year. The learned counsel appearing on behalf of the father of the injured witness further submits that they intend to move an application before the learned trial court to record the statement of the complainant of the F.I.R. through video link. The learned Deputy Prosecutor General states that the petitioner is not a previously convicted offender for an offence punishable with death or imprisonment for life. There is no evidentiary material on record to declare the petitioner as a hardened, desperate or dangerous criminal and he is not accused of an act of terrorism punishable with death or imprisonment for life. It is certainly not the requirement of law that an under-trial prisoner should be left to rot in jail only to satisfy the grudge of the complainant.
8. The liberty of a citizen has been elevated to the high dais by the provisions of Articles 7 and 9 of the Constitution of 1973, which inter alia provide that no citizen shall be deprived of his life and/or liberty , save in accordance with law, nor any accused person shall be detained without 'lawful authority of the competent court. To have a speedy trial, is the fundamental right of accused being universally acknowledged. It has been held by the Supreme Court of Pakistan in plethora of judgments that if delay in conclusion of trial is not occasion ed due to the act of accused or any other person acting on his behalf then the accused become entitled the concession of bail as a matter of right.
Reliance in this regard is placed on the case of Zahid Hussain Shah versus The State (PLD 1995 SC 49) wherein it has been held as under : "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(sic)(acting) 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."
Reliance in this regard is also placed on the case of "Adnan Prince versus The State through P.G., Punjab and another" ( PLD 2017 SC 147 ).
9. The upshot of the above discussion is that since the delay in the conclusion of trial is neither caused nor occasioned by an act or omission of the petitioner or any person acting on his behalf, hence he is entitled to the concession of bail on account of the said delay in conclusion of trial. For the foregoing reasons the petition in hand is allowed and the petitioner is admitted to post arrest bail subject to his furnishing bail bonds in the sum of Rs.4,000,000/- (Rupees four million Only) with two sureties, each in the like amount, to the satisfaction of learned trial court. The petitioner is directed to surrender his original passport to the learned trial Court till the conclusion of trial. Secretary , Ministry of Interior , Government of Pakistan is directed not to issue the petitioner with any fresh or duplicate passport. A copy of this order shall be sent by the office to the Secretary , Ministry of Interior , Government of Pakistan for information.
10. Needless to mention that any observations made in the above order are tentative in nature and shall not influence the trial court. Additionally a direction is issued to the learned trial court to conclude the trial of the case expeditiously , preferably within a period of three months from the receipt of copy of this order . It is made clear that if the petitioner or any person acting on his behalf causes delay in the conclusion of the trial, then the trial court shall be at liberty to cancel the bail of the petitioner in accordance with law .