SARDAR MUHAMMAD SARFRAZ DOGAR, J. Through this petition. Irfan the petitioner, seeks his release on post-arrest bail in case FIR No.116/2015, dated 23.2.2015, offence under section 376, P.P.C., registered with the Police Station Yousaf wala, District Sahiwal, at the instance of Muhammad Siddique complainant.
2. Allegation, as per contents of FIR, against the petitioner is that he committed rape with Maryam Bibi, the niece of complainant.
3. Heard. Record perused.
4. It is noticed that the petitioner was arrested in this case on 24.2.2015, whereafter, he was put to trial and finally, convicted and sentenced to the imprisonment for life, fine of Rs.1,00,000/- and compensation of Rs.2,00,000/- under section 544-A, Cr.P.C. and in case of non-payment of fine, to further undergo six months S.I., vide judgment dated 17.1.2017, handed down by learned Additional Sessions Judge, Sahiwal, against whom, the petitioner lodged a Criminal Appeal No.573 of 2017 before this Court, which was partially allowed by this Court vide judgment dated 09.10.2019 by setting aside the conviction and sentenced awarded to the petitioner and remanded the case to the learned trial Court with a direction to firstly, refer the alleged victim to a Medical Board headed by a Professor Neurology and other medical officers having qualification in the relevant field. The said Board will examine the alleged victim and submit comprehensive report regarding her mental condition/capacity. The learned trial Court shall also summon Chairman of the said Board as court witness, record his/her statement, provide opportunity to the learned counsel for the parties of cross-examination and thereafter decide the matter afresh. It was also clarified by this Court till re- writing the judgment, the trial of the case shall be deemed pending before the learned trial Court and during this period the petitioner will be treated as under trial prisoner.
5. The learned trial Court has ordered for constitution of Medical Board. The petitioner has lodged an application to the learned trial Court by challenging the report of Medical Board dated 07.11.2019 and requested for re-constitution of Medical Board in the light of directions issued by this Court, which was dismissed vide order dated 09.10.2019, which constrained the petitioner to file Criminal Revision No.478 of 2019 before this Court and vide order dated 27.12.2019, this Court has directed that subject to notice, action contemplated under the impugned order/proceedings dated 14.12:2019 shall be held in abeyance in the meanwhile.
6. The petitioner has lodged the instant petition on merits as well as statutory delay in conclusion of the trial. So far as the merits are concerned it is noticed there is unexplained delay of threes in lodging of FIR; the victim was medically examined after two days of the alleged occurrence and the MLR of the victim is silent regarding any penetration, any laceration on libea and majora of the victim. The alleged victim has not recorded her 'statement under sections 161 and 164, Cr.P.C. and even she did not appear before the learned trial Court as witness. The DNA report of the victim also speaks that the swa bs were not stained with the semen.
7. As regards statutory delay in conclusion of trial is concerned, it is noticed that this Court vide judgment dated 09.10.2019 while remanding back the case to the learned trial Court made it clear that the trial shall be deemed pending before the learned trial Court and the petitioner will be treated as under trial prisoner during the said period, as such, provisions of third proviso of section 497(1), Cr.P.C. are applicable to the petitioner's case.
8. In order to decide the question of entitlement of the petitioner to be released on bail on account of statutory delay, it would be appropriate to reproduce the 3rd and 4th proviso of section 497(1), Cr.P.C. as under:- "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."
9. The above quoted provision of law makes it crystal clear that the right of the accused to be enlarged on bail under the 3rd proviso to section 497(1), Cr.P.C. is a statutory right which could not be denied under the discretionary power of the Court to grant bail. However, bail under the 3rd proviso to section 497(1), Cr.P.C. could be refused to an accused only on the ground that the delay in the conclusion of trial had been occasioned on account of any act or omission of the accused or any other person acting on his behalf. Bail under 3rd proviso to section 497(1), Cr.P.C. could also be refused to an accused by the Court; if case of the accused fell under the 4th proviso to section 497(1), Cr.P.C., but in all other case the Court must grant bail. Reliance is also placed on the case of Sher Ali alias Sheri v. The State (1998 SCMR 190) and Shahzad Khan v. The State (2018 PCr.LJ 104), wherein it was observed as under:- "S 497--Bail statutory delay--Scope--Bail could not be refused on hyper technical grounds if case on statutory delay in, conclusion of trial was made out."
10. There is nothing on record to establish that the delay in conclusion of trial is occasioned by an act or omission of the petitioner or any other person acting on his behalf. Simultaneously, there is nothing on record that the petitioner is previously convict, hardened, desperate or dangerous criminal, thus, in my view it is a fit case for grant of bail, as the accused is facing the agonies of protracted trial, once again, after remand of his case, he cannot be kept in jail for indefinite period.
11. For what has been discussed above, I am of the view that since the petitioner is in continuous detention and has spent more than five years in jail, therefore, he is entitled to, the grant of bail keeping in view the 3rd proviso of section 497(1) of Cr.P.C. and accordingly, the instant petition is accepted. The petitioner is allowed post-arrest bail subject to his furnishing bail bonds in the sum of Rs.2,00 000/- (rupees two hundred thousands) with two sureties each in the like amount to the satisfaction of learned trial court.
12. However, it is clarified that the observations made hereinabove are tentative in nature and strictly confined to the disposal of this bail petition.