MUHAMMAD IJAZ KHAN, J. This order is directed to dispose of application filed by petitioner namely Izhar Ullah for grant of post arrest bail in case FIR No. 837 dated 18.05.2021 registered under section 302 PPC at Police Station Khursheed Khan Shaheed (Khwaza Khela) District Swat, on the ground of statutory delay in conclusion of his trial.
2. As per contents of the FIR the present accused/petitioner has been charged by the complainant for the murder of his deceased brother namely Sartaj Ali Khan.
3. Arguments of learned counsel for the parties as well as learned Astt: A.G. were heard in detail and the record perused with their able assistance.
4. The record is evident and as there is no dispute that the present accused/petitioner is a juvenile offender as he is under prisoner in the Court of learned Additional Sessions Judge/judge Child Protection & Juvenile Court Swat. The present application has been filed by the accused/petitioner on the ground of statutory delay in conclusion of his trial. It may be noted here, that under sections 5 & 6 of The Juvenile Justice System Act, 2018 a juvenile offender has a statutory right to be released on bail, if his trial is not concluded within six months. The said provisions clearly indicate that like third proviso to section 497 Cr.P.C the same is not controlled by any other factors like proviso four of section 497 Cr.P.C and as such it is statutory duty of the prosecution to complete the trial by all possible means within six months, otherwise a juvenile offender shall have the right to be released on bail.
5. The record appended with the instant bail application was gone through which speaks that the accused/petitioner was arrested on 20.05.2021 and as such till date he is behind the bars for the last 15 months and all the order sheets of the learned trial Court were meticulously perused with the able and honest assistance of both the learned counsel for the parties as well as learned Astt: A.G and it shows only two dates i.e. 30.10.2021 and 11.11.2021 adjournments were sought on behalf of the accused/ petitioner, whereas the rest of the delay in the conclusion of trial is not occasioned due to him or a person acting on his behalf.
6. The order sheets are also indicative of the fact that neither the accused/petitioner nor his counsel has made any visible and active attempt to delay the conclusion of the trial, therefore, in view of the statutory command the present accused/petitioner has earned a right of bail in November, 2021 but till date he is confined in jail, therefore, the accused/petitioner is entitled to be enlarged on bail on the ground of statutory delay in conclusion of his trial.
7. The Hon'ble Apex Court in the case of "Shakeel Shah v/s The State & others" reported as 2022 SCMR 1 has dilated upon the applicability of third and fourth proviso to section 497 Cr.P.C by holding that; "that 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 of 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. Thus, mere mathematical counting of all the dates of adjournments sought for on behalf of the accused is not sufficient to deprive the accused of his right to bail under the third proviso. The statutory right to be released on bail flows from the constitutional right to liberty and fair trial under Articles 9 and 10A of the Constitution. Hence, the provisions of the third and fourth provisos to section 497(1), Cr.P.C must be examined through the constitutional lens and fashioned in a manner that is progressive and expansive of the rights of an accused, who is still under trial and has the presumption of innocence in his favour. To convince the court for denying bail to the accused, the prosecution must show, on the basis of the record, that there is a concerted effort on the part of the accused or his counsel to delay the conclusion of the trial by seeking adjournments without sufficient cause on crucial hearings and/or by making frivolous miscellaneous applications."
Subsequently, the Ho'nble Apex Court in the case of "Nadeem Samson v/s The State & others" reported as PLD 2022 SC 112, has further elaborated the spirit, scope and extent of proviso 3rd & 4th of section 497 Cr.P.C and has observed as follows;
8. The scope of the 3rd proviso to section 497(1), Cr.P.C. has recently been expounded by this Court in the Shakeel Shah case, cited by the counsel for the petitioner, by examining and interpreting its provisions as well as the provisions of the related 4th proviso, in detail. We, therefore, think it unnecessary to re-examine the scope of those provisos again in this case, especially when we find ourselves in agreement with what has been held in that case. What we consider appropriate to do is to recapitulate the main principles enunciated therein, as to the meaning, extent and scope of the 3rd proviso, for clear understanding of and compliance by, all the other courts in the country in terms of Article 189 of the Constitution of the Islamic Republic of Pakistan 1973. They are: 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 hi 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, Le., 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 wills 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.
(v) 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
(vi) 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.
In the light of the above principles, we proceed to appreciate the statutory ground of delay in conclusion of the trial pleaded by the counsel for the petitioner, for grant of bail to the petitioner.
The same view was also affirmed by the Hon'ble Apex Court in its judgment rendered in the case of "Ali Asghar v/s The State & others" reported as 2022 SCMR 970 by observing as follows; The report clearly shows that the delay is not attributable to the petitioner in any manner. A plain language of proviso 3 to subsection (1) of section 497, Cr.P.C. clearly reveals that in cases of non-bailable offences, which are not punishable with death where the accused has been detained for a continuous period exceeding one year and it is found that the delay in the trial has not been occasioned due to any act or omission of the accused, the Court shall direct that the accused be released on bail. This Court has time and again held that liberty of a person is one of the most cherished attributes, perhaps more important than the other freedoms guaranteed under the Constitution of Islamic Republic of Pakistan, 1973, which cannot be taken away without exceptional foundations.
8. After insertion of Article 10-A in the Constitution of Pakistan, the due process of law including speedy and fair trial has been recognized as a fundamental right of every accused person. The policy of criminal law is to bring an accused person to justice as speedily as possible and if he is found guilty he may be punished and if he is found innocent he may be acquitted. Since the delay in conclusion of trial is not attributable to the present petitioner, therefore, he is entitled to the concession of bail on statutory ground as he remained incarcerated in jail for continuous period of more than one year. In such circumstances, the instant bail application is allowed and the petitioner is directed to be released on bail provided he furnishes bail bonds in the sum of Rs.
200,000/- (two hundred thousand) with two sureties each in the like amount to the satisfaction of learned trial Court, who shall ensure that the sureties are local, reliable and men of means.