IJAZ ANWAR.J- Through instant bail application, accused petitioner Faisal Hussain son of Iftikhar Hussain seeks his release on bail in case FIR No. 67/24 dated 04.03.2024 registered under section 409/419/420 PPC, at Police Station FIA/CBC, Peshawar.
2. It is pertinent to mention here that the first bail application No. 3285-P/2023 filed by the petitioner in FIR No. 258 dated 04.07.2023 registered under section 408/419/420 PPC, at Police Station Gharbi, Peshawar was dismissed by this court on merit vide order dated 13.09.2023. Subsequently, another FIR (present one) has been registered on 04.3.2024 by the FIA authorities regarding the same occurrence due to schedule offences under the Offices in respect of Banks (Special Courts)
Ordinance 1984 and instead of section 408 PPC, section 409 PPC has been applied to the case of petitioner, as such this bail petition has been filed on fresh ground.
3. Arguments of counsel for the parties heard and record perused.
According to learned counsel for petitioner, since modification has been made in the quantum of sentence carried by section 409 PPC as mentioned in second schedule of the Offences in Respect of Banks (Special Courts) Ordinance, 1984, and in view thereof, due to the punishment not falling within the prohibitory clause of section 497 Cr.P.C, the accused petitioner has now become entitled to the concession of bail. The contention so made by learned counsel for petitioner is misconceived because the earlier bail petition was not dismissed because of the sentence carried by the section of law i.e. section 408 PPC but because of the embargo under section 5 (6) of The Offences in Respect of Banks (Special Courts) Ordinance 1984 (Ordinance No. IX of 1984) on grant of bail to an accused person who has been guilty of a Scheduled Offence, as such, the ground taken by the petitioner cannot be termed as a fresh ground because the prohibition contained in section 5 (6) of The Offences in Respect of Banks (Special Courts) Ordinance 1984 (Ordinance No. IX of 1984) still remains there. The counsel for petitioner when confronted, stated that instead of the fresh ground taken in the bail petition, the instant bail application be decided in view of the 3rd proviso to section 497 Cr.P.C, as the accused petitioner is behind the bars for more than a year and his trial has not been concluded. As such, this bail petition is to be decided on fresh ground of delay in conclusion of trial of accused petitioner.
5. Para- (a) to 3rd Proviso to section 497 (1) Cr.P.C says that if an accused person is detained continuously for a period exceeding one year for an offence not punishable with death and his trial has not been concluded, he has a statutory right to be released on bail. The same being relevant is reproduced as under: (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 been concluded."
In the instant case, the section of law applied against the accused petitioner does not carry death penalty coupled with the fact that trial of the accused petitioner has not even commenced what to say of its completion. Thus, the case of petitioner is covered under para (a) to 3rd Proviso to section 497 (1) Cr.P.C.
6. Bail under 31'd proviso to section 497 (1) Cr.P.C can be refused to an accused by the Court only on two grounds i.e. one mentioned in 3rd proviso itself "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' and the second mentioned in 4th proviso that "the accused is 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". Nothing has been brought on record that the delay in conclusion of trial has been occasioned on part of the accused petitioner or any other person acting on his behalf or that he is an offender covered by the 4th proviso to section 497 (1) Cr.P.C, thus he is entitled to be released on bail. Reliance can be placed on recent judgement of the august Supreme Court of Pakistan reported in 2022 SCMR 1 "Shakeel Shah Vs the State and others." The instant bail application is, thus, allowed.
7. These are the reasons for my short order even dated which is reproduced below: "For the reasons to be recorded later, the instant bail application is allowed and the accused petitioner Faisal Hussain son of Iftikhar Hussain is admitted to bail in case FIR No. 67/24 dated 04.03.2024 registered under section 409/419/420 PPC, at Police Station FIA/CBC, Peshawar provided he furnishes bail bonds in the sum of Rs. 300,000/- with two sureties each in the like amount to the satisfaction of the Illaqa/ Duty Magistrate, who shall ensure that the sureties are local, reliable and men of means."