SHAHID KHAN, J.- This order is directed to dispose of an application filed by the petitioner namely Salman Khan for the grant of post arrest bail in case FIR No. 159 dated 12.03.2021 registered under sections 377/506 PPC read with section 53 of the Khyber Pakhtunkhwa Child Protection & Welfare Act, 2010, at Police Station Saidu Sharif, District Swat, on the ground of statutory delay, in the conclusion of his trial.
2. As per contents of the FIR the complainant, namely, Javaid Afzal Khan, in the company of his minor son/victim, namely, Anas Bacha reported the matter to the local police, whereby, he charged the present accused/petitioner, namely, Salman Khan, for committing sodomy with the minor/victim.
3. Arguments of learned counsel for the parties and learned Astt: A.G for the State heard and the record scanned with their able assistance.
4. The only ground to procure favourable concession for the accused petitioner is the statutory delay of the adjudication of the event followed by its disposal to the effect that the event has been sent up for trial on 21.03.2021, whereas, the trial has not yet been concluded and this score alone the concession of bail has been sought.
5. Close perusal of the record made available would transpire that the delay in the conclusion of the event is floating on the surface of the record. It has to be determined that the subject delay is prima facie willful & deliberate and can only be attributed to the prosecution or it is a contributory delay, whereas, the defence is equally responsible to delay the conclusion of the event followed by its adjudication on its own merits.
6. The relevant details of the events of the contributory delay either on the part of counsel for the accused/petitioner, prosecution or otherwise, due to the non-availability of the Presiding Officer of the Court and strikes etc, in a tabulated form for easy understanding is reproduced below;- S#Counsel for the accused/PetitionerReader-Note Strikes Order # with dateDays Date DaysOrder # with dateDays 107 16.06 .202118 04.06.20211419 04.06.202213 210 08.12.202131 10.07.20214328 13.12.2022 26 312 09.02 202207 09.01.202335 20 17.06.202214 14.02.202325 22 18.07.202256 31 30.03.202206 33 19.04.2023 Total days 132 117 39
7. The delay so highlighted and reflected above is of two years, one month and eight days, whereas, the delay which could be attributed to the accused/petitioner is 132 days i.e. 04 months & 12 days, while the delay attributed to the prosecution is 288 days i.e. 09 months & 18 days.
8. Other than it, the trial has been adjourned on the Reader-Note for the want of the Presiding Officer and the period in this regard is 117 days, whereas, adjoumments due to strikes, it resulted to delay for 39 days.
9. The aforesaid highlighted period of delay has driven the Court to the conclusion that the delay in question could no way be attributed to a single functionary of the Court i.e. prosecution or defence, or otherwise, rather, it is a contributory delay and on this score alone, it would be unwise to hold responsible the prosecution and to allow a walkover & a chance to the accused/petitioner to encash the delay and not to shoulder the responsibility of the contributory delay.
10. While keeping in view of the peculiar facts & circumstances of the present case, wherein, the petitioner has allegedly been charged for committing unnatural act with a minor/victim, proviso 4th of section 497, Cr.P.C. is fully attracted to the case of present petitioner, therefore, he could not be extended the benefit of proviso 3 of section 497, Cr.P.C. In the case of "Allah Wasava v/s The State & others" reported as PLD 2022 Supreme Court 541 the Apex Court has held as under;- That the sole question that needs consideration and determination by us, in the present case, is whether an accused person may be treated as a hardened, desperate or dangerous criminal, within the meaning of that expression as used in the fourth proviso to Section 497(1), Cr.P.C., on the basis of the facts and circumstances of the case, when he applies for bail on the statutory ground of delay in conclusion of the trial, or there must necessarily be some previous criminal record of the accused to form such an opinion by the court about him. The meaning and scope of the phrase "hardened, desperate or dangerous criminal" have also been explained in Shakeel Shah, wherein this Court held that the words "hardened, desperate or dangerous" point towards a person who is likely to seriously injure and hurt others without caring for the consequences of his violent act and can pose a serious threat to the society if set free on bail, and such tentative opinion as to the character of the accused is to be formed by the court upon careful examination of the facts and circumstances of the case. We are of the considered view that the court may also refer to any previous criminal record, if available, for forming such opinion but it matters little if the accused does not have a previous criminal record. The very gravity and severity of the act alleged to have been committed by the accused, even though for the first time, may be sufficient to attract the fourth proviso to section 497(1) Cr.P.C. in the peculiar facts and circumstances of a case and may lead the court to form opinion that the accused is a hardened, desperate or a dangerous criminal.
11. In the case of "Rehmat Ullah v/s The State & another" reported as 2011 SCMR 1332, the Apex Court has held that: "the Court should not grant or cancel bail when the trial is in progress.
12. Resultantly, the request of the accused/ petitioner for his release on bail on the ground of statutory delay is regretted and the petition stands dismissed.
13. Before parting, the learned trial Court be informed to proceed ahead with the trial on day-to- day basis, however, if, inconvenient, the Court may allow the next date of hearing as per diary of the learned defence counsel followed by proceedings under the law.