ROOH-UL-AMIN KHAN, J. This is a petition on behalf of Muhammad Taimur s/o Fazal Elahi for admitting him to post-arrest bail, on statutory delay, till final conclusion of trial, who is detained in the case under section 9 (a) of the NAB Ordinance, 1999.
02. This case has a history of its own, which is depicted from the record appended with this writ petition. Petitioner was placed under arrest on 02.06.2021, on the allegation that he being owner of M/S www.Pslashuk.com, online company cheated/defrauded the general public under the garb of said online business/Ponzi scheme by inducing general public to collect money from the company on the pretext of high rate of return and thus deprived them of their hard-earned money.
Consequently, the NAB took cognizance of the matter, proceeded against him, finally, he was booked under section 9 (a) of the NAB Ordinance, 1999. In earlier round, the petitioner was declined bail by this Court on 05.10.2021, on merit. The petitioner moved an application for his release on bail on statutory ground, which was declined by the learned Judge Accountability Court-IV, KP, Peshawar. Being aggrieved of the same, the petitioner has landed up before this Court.
3. It was mainly argued by the learned counsel for the petitioner that the petitioner was arrested on 02.06.2021, and since then, he is languishing in jail, and delay in submitting the challan or conclusion of trial cannot be attributed to him or anyone acting on his behalf, as such, he is entitled to the concession of bail under 5th proviso of sub-section (1) of section 497 Cr.PC.
4. In rebuttal, the learned counsel representing the NAB, submitted that the petitioner is not entitled to the concession of bail under 5th proviso to section 497 Cr.PC, as he is a hardened desperate and dangerous criminal. They next submitted that challan has now been given and trial is likely to commence soon, therefore, he is not entitled to bail under 5th proviso to section 497 Cr.PC, as his case falls within the ambit of 6th proviso to section 497 Cr.PC. When they were asked as to how many witnesses are to be produced by the prosecution in support of the charge brought against the accused, they stated that in the instant case 1750 (seventeen hundred and fifty) witnesses are to be examined, after proceedings against the absconding co-accused.
5. We have given our anxious consideration to the arguments of the learned counsel for the parties and scanned the record with their valuable assistance.
06. It is reflected from the record that the petitioner was placed under arrest on 02.06.2021. He is languishing in jail for an offence not punishable with death or imprisonment for life. There is no denial of the fact that he is in continuous detention for more than one and half year (1 1/2 year) and a few days ago, after completion of investigation challan was submitted against him before the learned trial Court. There are total seventeen hundred and fifty (1750) witnesses, who are to be examined in the learned trial Court, in support of allegations brought by the prosecution, after proceedings against the absconding co-accused and early conclusion of trial is not at sight in near future.
07. As noted above, the petitioner is behind the bars since 02.06.2021 for about more than one and half year. Under 5th proviso of sub-section (1) of section 497, the Court is competent to direct an accused person to be released on bail, who, being accused of any offence not punishable with death, who 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 been concluded and who, being accused of an offence punishable with death, if he has been detained for such offence for a continuous period exceeding two years and whose trial for such offence has not been concluded. However, this is subject to the condition provided in the 6th proviso, Le, the delay in the trial of the accused should not have been occasioned by any act or omission of the accused or any other person acting on his behalf, while, 6th proviso provides a further rider on the above statutory right of an accused person to be released on bail on the above ground of statutory delay by laying down that the 5th proviso to above sub-section shall not apply to 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 involved in act of terrorism.
Simple is that the right of an accused to be enlarged on bail under the proviso, referred to ibid, is a statutory right which cannot be denied under the discretionary power of the Court to grant bail, however, if the case falls under the sixth proviso, bail can be refused by the Court. For ready reference, 5th and 6th proviso of section 497 Cr.P.C are reproduced herein below:- "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 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 be 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".
08. A bare perusal of the above-quoted proviso would reflect that the Court is obliged to release a person on bail, who, being an accused of an offence not punishable with death, if he has been detained for such offence for a continuous period exceeding one year and whose trial for such offence has not been concluded. It is now settled that an early trial is an inherent right of every accused, and inordinate delay in imparting justice was likely to cause erosion of public confidence on one hand, and on the other, helplessness, despair and feelings of frustration apart from adding to the woes of the public. In this respect reliance can well be placed on the case "Wazir Ali v. The State" (PLD 2005 Karachi 201), wherein it was held as under:- "I have given due consideration to the arguments of the learned counsel for the applicant and learned State counsel. I have also gone through the material placed on record and the case-law cited at the bar. Indeed, a direction to the trial Court to conclude the trial within specified time if not complied with, cannot be deemed to be fresh ground as held in the case of Muhammad Nawaz v. The State 2003 MLD 79, nevertheless, the delay in conclusion of a trial when it appears to be shocking and scandalous or when it appears that complainant and his witnesses have played a part in delaying the conclusion of the trial by remaining absent despite having been served in order to see that accused should remain incarcerated for as much time as possible can be taken into consideration for grant of bail. The complainant and the P.Ws who are related inter se and two of the witnesses are real brothers of the complainant, have failed to appear despite issuance and service of P.Ws. against them, this fact speaks for itself Indeed, Provisos (iii) and (iv) to section 497 Cr.P.C. stand duly omitted during the pendency of this case but even before introducing the said provisos (iii) and (iv) to section 497(1) Cr.P.C. bail was being granted in cases of delay in conclusion of the trial which appeared to be scandalous and shocking. Hardship is also being considered as ground for bail in appropriate cases by the superior Courts of the country."
09. Reliance is also placed on the case of "Sher Ali alias Sheri v. The State" (1998 SCMR 190), wherein it was held that: - "S. 497(1), third & fourth provisos---Bail on the ground of statutory delay--- Right of accused for bail under the third proviso to S. 497(1), Cr.P.C cannot be defeated on any other ground except the delay mentioned in the relevant clause and the grounds provided in the fourth proviso thereof'.
10. We are also fortified by unreported judgment of the apex Court in Criminal Petition No.1232 of 2016 titled "Adnan Prince v. The State through P.G. Punjab and another" decided on 01.02.2017, wherein it was held that if a case on statutory delay in the conclusion of trial is made out then, ordinarily bail should not be refused on hyper technical ground. It was also held that "The Primary object behind this view is that in case any accused person under detention is acquitted at the end of the trial then, in no manner the wrong, caused to him due to long incarceration in prison pending trial, he cannot be compensated in any manner while on the other hand, in case, if he is convicted then, he has to be rearrested and put behind the bars to undergo his sentence and in that case, no prejudice would be caused to the prosecution/complainant.
11. Reference in this behalf may be made to the judgment of this Court reported as "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".
12. In this respect reference may also be made from the judgment reported as "Behram v. The State" (2003 PCr.LJ 73), wherein it was held that "fair and expeditious trial is fundamental right of the accused person which cannot be denied to him".
13. In our view, mere involvement of the petitioner in the present case does not indicate that he is a desperate or dangerous criminal or he can be posed serious threat to the society at large, if released on bail. As such, we are of the view that the petitioner has made out a case for grant of bail on statutory delay, therefore, he is entitled to the concession of bail under the 5th proviso to section 497 Cr.PC, as his case is not hit by 6th proviso to section 497 Cr.PC.
14. Without rendering any impression of opinion, lest it may prejudice the case, we accept this petition and direct to release the petitioner on bail, on the ground of statutory delay, as observed above, subject to furnishing bail bonds in the sum of Rs.50,00,000/- (rupees fifty lacs) with two sureties each in the like amount to the satisfaction of the learned Accountability Court, Peshawar/trial Court, who shall ensure that the sureties are local, reliable and men of means, subject to surrender of his Passport to the NAB authority, placement of his name in the Exit Control List (ECL) and surrender of Cryptocurrency code to the FIA/Investigating Officer of the NAB.
15. Above are the detailed reasons of our short order of even date.