SARDAR MUHAMMAD SARFRAZ DOGAR, J. Through this petition in the terms of Section 497, Cr.P.C., Zulfiqar alias Bhutto, the petitioner has sought post arrest bail on the fresh ground of hardship due to prolonged and continuous incarceration of the petitioner as well as statutory ground of delay in conclusion of trial in case FIR No. 07 dated 14.2.2009, registered under sections 302, 148, 149, P.P.C. at Police Station Shah Wali District Rajanpur at the instance of Nazir Ahmad complainant.
2. Learned counsel for the petitioner contends that expeditious and early trial is inalienable right of every accused but in the case in hand the directions issued by this Court qua the swift conclusion of the trial has not been complied with in spite of the fact that the accused was not responsible for causing delay in conclusion of trial, as such an accused person cannot be left at the mercy of the prosecution to rot in jail for an indefinite period. It is next contended that the petitioner was taken into custody on 3.7.2017 i.e. about four years and six months back and charge against him was framed on 27.04.2019, i.e. after a lapse of about 18/19 months of the arrest of the petitioner; that the period for conclusion of trial as stipulated under section 497 Code of Criminal Procedure had already been lapsed; that the learned trial court in its order dated 27.11.2021 has clearly mentioned that the complainant and other three private witnesses namely Karam Nawaz, Khairoo and Wali Muhammad have failed to appear before the trial court on numerous occasions as they have concealed themselves to avoid their service and to frustrate the process of law and the learned trial court issued non-bailable warrants of arrest of the complainant and the other three witnesses as such the petitioner solely cannot be held responsible for delay in the conclusion of the trial; that there is no previous record of conviction of the petitioner and in the circumstances of the case, the petitioner cannot be held to be hardened, desperate or -dangerous criminal. Hence, the petitioner is entitled to the grant of bail.
3. Conversely, the learned Deputy Prosecutor General on behalf of the State has vehemently opposed the bail petition by contending that the trial has been delayed by the petitioner and his co-accused and that petitioner is a dangerous, desperate and hardened criminal within the meaning of 4th Proviso to section 497, Cr.P.C., thus, this petition is liable to be dismissed.
4. Arguments heard and record perused with the able assistance of learned counsel for the petitioner as well as learned D.P.G. appearing on behalf of State.
5. Irrespective to the merits of the case, the bail is claimed mainly on the following two grounds:-
(i) as to whether on the basis of non-compliance of the directions issued to the trial Court to conclude the 'trial expeditiously or within some specified time, the accused can claim his bail as a matter of right and the same can be considered as valid ground for grant of bail to an accused:
(ii) as to whether after the expiry of certain period, benefit of proviso 3 of section 497(1), Cr.P.C. could be available to the accused in all eventualities and as to whether the case of the petitioner falls within the definition of hardship due to prolonged and continuous incarceration of the petitioner?
6. Lest this Court passes any finding on the role of the petitioner, which may prejudice the case of the parties during the on-going trial before the learned trial Court, and without commenting upon the merits of the case, it is observed that this is 6th post arrest bail in its series before this Court.
Earlier, Crl. Misc. No. 5378-B of 2017 was dismissed as withdrawn on 28.9.2017 while the second post arrest bail bearing Crl. Misc. No. 629-B of 2018 seeking the selfsame relief was also dismissed as withdrawn on 1.2.2018. Similarly, the 3rd post arrest bail application of the petitioner bearing Crl.
Misc. No. 3260-B of 2018 was dismissed being not maintainable by this Court vide order dated 9.7.2018, whereas, the 4th petition in its series but 1st on the ground of statutory delay, i.e. Crl. Misc.
No. 5327-B of 2020 which was withdrawn after arguing the case at full length on 13.1.2021. 5th post arrest bail but 2nd on the ground of statutory delay bearing Crl. Misc. No. 3914-B of 2021 was withdrawn on 7.9.2021 with direction to the learned trial court to conclude the trial within a period of two months. Now, the petitioner has come to this Court by way of moving this 6th petition seeking his release on post arrest bail on the fresh grounds of hardship due to prolonged and continuous incarceration of the petitioner as well as statutory ground of delay in conclusion of trial.
7. Coming to the contention of learned counsel for the petitioner that the petitioner is entitled for grant of bail, as compliance of the directions issued by this Court in its orders dated 1.2.2018 in Crl.
Misc. No. 619-B of 2018 and 7.9.2021 in Crl. Misc. No. 3914-B of 2021, regarding expeditious conclusion of the trial, have not been complied with is concerned, suffice it to observe that mere non- compliance of the directions issued to the trial Court to conclude the trial expeditiously or within some specified time cannot be considered as valid ground for grant of bail to an accused, being alien to the provisions of section 497, Cr.P.C. as the accused cannot claim bail on this ground as a matter of right as has been held by the august Supreme Court of Pakistan in the case reported as "Tallat Ishaq v. National Accountability Bureau through Chairman and others" (PLD 2019 Suprem e Court 112), but it is certainly a fresh ground to be assessed and examined by the court for exercise of its discretion in either way, in the overall facts and circumstances of the case. Reliance in this context can be placed on the recent order dated 6.1.2022 passed by the august Supreme Court of Pakistan in Crl. P. No. 1016-L/2021, wherein while dilating on the point mentioned supra, the Hon'ble Apex Court has observed as under:- "xxx While the second submission of the counsel for the State that the non-compliance of the direction to conclude the trial within the specified period per se is not a fresh ground for bail is correct only to the extent that an accused cannot, as held by this Court in the Talat Ishaq case, claim bail on this ground as a matter of right, but it is certainly a fresh ground to be assessed and examined by the court for exercise of its discretion in either way, in the overall facts and circumstances of the case."
8. Now comes to other contention qua the right of the petitioner to be released on bail on the statutory ground of delay within the scope of the 3rd Proviso to Section 497 (1) Cr.P.C. To construe the legal imports of law, it is advantageous to reproduce it:-
1. When any person accused of non-bailable offence is arrested or detained without warrant by an officer-incharge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of [an offence punishable with death or [imprisonment for life or imprisonment for ten years]] Provided that ................
Provided further that ...............
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 As per 3rd Proviso to Section 497, Cr.P.C., a person accused of an offence punishable with death, if detained for such an offence for a continuous period exceeding two years shall be released on bail, of course, with the exception contained in the 4th Proviso to section 497, Cr.P.C. that the provisions of Third 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. The scope of the 3rd Proviso to Section 497 (I), Cr.P.C. has been expounded by the Hon'ble Supreme Court of Pakistan in the case cited as `Shakeel Shah v. The State' (2022 SCMR 1) (Criminal Appeal No. 1072/202) and the principles enunciated therein, have been recapitulated by the Apex Court in its recent order dated 6.1.2022 passed in Crl. P. No. 1016-L of 2021 "Nadeem Samson v. The State" PLD 2022 SC 112, which for the sake of ready reference are reproduced as under:-
(i) 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 in 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, i.e., 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 with 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.
9. On this analogy, record has been scanned and from perusal whereof it is found that the petitioner was taken into custody on 3.7.2017 i.e. about four years and six months back and charge against him was framed on 27.04.2019, i.e. after a lapse of about 18/19 months of the arrest of the petitioner while the period for conclusion of trial as stipulated under section 497 Code of Criminal Procedure had already lapsed. It is noticed that there is no delay in conclusion of the trial which can solely be attributed to the petitioner or to any person acting on his behalf reflecting a design or pattern to consciously delay the conclusion of the trial. On the other hand, the responsibility qua the delay in conclusion of trial is on the part of the complainant and his private witnesses because they despite repeated adjournments failed to appear for evidence. It is significant to point out here that vide order dated 7.9.2021, passed in Crl. Misc. No. 3914-B of 2021, learned counsel for the complainant undertook to cooperate with the learned trial court for early disposal of the trial and he also undertook to produce his evidence on the next date of hearing before the learned trial court. But despite the above-stated undertakings, 'neither the complainant appeared himself in the Court nor produced his witnesses in the Court as is apparent from the order dated 27.11.2021, wherein the learned trial court has clearly mentioned that the complainant and other three private witnesses namely Karam Nawaz, Khairoo and Wali Muhammad have failed to appear before the trial court on numerous occasions as they have concealed themselves to avoid their service and to frustrate the process of law, due to which the learned trial court was constrained to issue non- bailable warrants of arrest of the complainant and the other three witnesses in order to procure their attendance. For the sake of ready reference, order passed by the learned trial court dated 27.11.2021 is reproduced as under:- "No PW is in attendance. It has been reported on non-bailable warrant of arrest issued for procuring attendance of the complainant Nazir Ahmad and PWs namely Karam Nawaz, Khairoo and Wali Muhammad that they have concealed themselves to avoid their arrest in order to frustrate the process of law. Statement of Khalil Ahmad ASI/Process Server regarding execution of non-bailable warrant of arrest of the complainant and PWs has been recorded separately. In the light of statement of the process server, this court is satisfied that the complainant and private PWs have concealed themselves in order to frustrate their lawful arrest and their service seems impossible through ordinary means. Hence, proclamations under section 87 Cr.P.C., be issued against the aforesaid complainant and the PWs for 08.01.2022 with the direction to Station House Officer P.S. concerned to get the same executed in accordance with law. The process server shall also appear in person for recording his statement qua execution of proclamation on the date fixed."
In these circumstances, when the trial court, in its order dated 27.11.2021 has mentioned on the basis of the report of the process server that the complainant and private PWs have concealed themselves in order to frustrate the legal process and their service seems impossible through ordinary means. Hence, proclamations under section 87, Cr.P.C., against the aforesaid complainant and the PWs have been issued, as such in the circumstances as alluded in the above-said order of the learned trial court, the petitioner cannot be solely held responsible for such delay particularly when the period of two years continuous detention has already expired. Now, even four years and six months have passed since the arrest of the petitioner who was arrested in the instant case on 3.7.2017. On the other hand, learned Deputy Prosecutor General under instructions of the police officer present in Court has confirmed that there is no record of previous conviction of the petitioner.
10. In similar facts and circumstances, the Hon'ble Supreme Court of Pakistan in a case reported as "Abu Akbar v. State and others" (PLJ 2021 SC (Cr.C) 106), while referring to the report of the learned trial court wherein the delay in conclusion of trial was on the part of the complainant and his private witnesses because they despite repeated adjournments failed to appear for evidence, has allowed bail to the petitioner while observing as under:- "9. In these circumstances, when the trial Court has in its report, stated that the delay in the conclusion of trial is also on the part of complainant and his private witnesses, the petitioner cannot be solely held responsible for such delay particularly when the period of two years' continuous detention expired even before framing of charge. Now even four years have passed since the arrest of the petitioner (petitioner was arrested in this case on 11.06.20167(sic))...............
Likewise, the learned Division Bench of this Court in the case reported as "Muhammad Hussain v.
State, etc." (PLJ 2018 Cr.C. 730 (DB), while referring to the case reported as "Asif Ali Zardari v. The State" (1993 PCr.LJ 781), has also granted bail to the petitioner on the basis of statutory delay in the trial. The extract from the said order, i.e. Paragraphs Nos. 9 and 10 are reproduced as under: "9. The petitioner is in jail since 7.7.2015, while conclusion of the trial is not in sight because the prosecution witnesses are not turning up, inspite of coercive process has been issued against them, therefore, to expect the conclusion of the trial in the near future, would be nothing but a farfetched dream. In the case titled "Mr. Asif Ali Zardari v. The Statee" (1993 PCr.LJ 781)
A Full Bench of the Sindh High Court, granted him bail on the basis of statutory delay in the trial, the Full Bench of the Sindh High Court at Karachi held that in the case of shocking delay in the conclusion of trial, the accused was entitled to the concession of bail on the strength of third proviso to Section 497, Cr. P.C. , which view has not been set aside by the August Supreme Court of Pakistan till date.
10. In view of the above, in our view, the petitioner has become entitled to grant of bail as of right on the basis of shocking delay in the conclusion of trial, more so, if further time is allowed to the prosecution, it would be absolutely impossible to conclude trial before the Trial Court. The petitioner is still awaiting his trial, therefore, has further detention in jail would serve no useful purpose for the prosecution. The petitioner is still awaiting his trial, therefore, has further detention in jail would serve no useful purpose for the prosecution........"
11. Considering all these circumstances and seeking wisdom from the case mentioned above, I am of the view that the petitioner has made out a case for his release on bail on the statutory ground of delay in the conclusion of the trial. In sequel to what has been discussed above, the instant petition is accepted as a consequence whereof, the petitioner is admitted to bail after arrest subject to his furnishing bail bonds in the sum of Rs.2,00,000/- with two sureties each in the like amount to the satisfaction of learned trial court.
12. Before parting with this order, the learned trial court seized of the matter is directed to expedite the proceedings of trial and ensure its conclusion in the shortest possible time. It is made clear that if the petitioner misuses the concession of bail or delay in the conclusion of trial is caused by him or anyone else acting on his behalf, the learned trial court shall be competent to recall the bail granted to him, after hearing the parties, strictly in accordance with law.