ABDUL HAMEED BALOCH, J. Through this application the applicant seeks bail in FIR No.32 of 2016 lodged with Police Station Bhoosa Mandi, under Sections 302, 324, 34 of the Pakistan Penal Code, 1860 ("P.P.C.").
Earlier the bail application filed by the applicant before e Additional Sessions Judge-II, Sariab, ("trial court"), was dismissed vide order dated 17.09.2022.
2. Brief facts of the case are that on 08.11.2016 the complainant Abdul Khaliq lodged the referred FIR, alleging therein that on the stated date applicant and his sons came to his house and extended filthy language to him and his father, meanwhile the applicant made firing upon his father namely Haji Muhammad Hassan, due to which he died, whereas the son of the applicant also sustained injuries.
3. I have heard the learned counsel for the applicant and learned State counsel and have perused the available record with their able assistance. The perusal of record reveals that the applicant/accused was nominated in the promptly registered referred FIR with specific role of firing. The record reveals that the accused remained fugitive from law and was arrested approximately after three years of registration of the FIR. The learned counsel for the applicant sought bail on the ground of statutory delay. As per record the applicant/accused was arrested on 10.08.2019. The charge was framed and read over to him. The applicant/accused did not plead guilty and claimed trial. The prosecution recorded statement of five witnesses, but in the meanwhile co-accused Ahmed Shah son of applicant/accused surrendered himself before the Additional Session Judge-I, Quetta for grant of ad-interim pre-arrest bail, and he was granted pre- arrest bail. The trial court called the prosecution witnesses for recording their statement and recorded statement of three witness.
4. Under the law speedy and fair trial is the fundamental right of every accused person. The purpose of insertion of third proviso of section 497 Cr.P.C is that to do justice with accused, meaning thereby proceed with the case speedily as possible. The guiding principle for the grant of bail on the ground of delay was laid down by the Hon'ble apex Court in the case of Riasat Ali v.
Ghulam Muhammad PLD 1968 SC 353, wherein It was held that "Delay in prosecution of case amounting to abuse of process of law and is valid ground for bailing out accused, however, delay in prosecution of case as a ground for bail is to be weighed and judged in each case on its own merits.
5. Bare reading of third proviso of Section 497 Cr.P.C would make it clear that it is statutory right which is earned by accused person. The word "shall" used in the above referred provision means that where the statutory period is over/complete, the delay is not on fault of accused and where the case does not fall under any category of the fourth proviso, then the court is left with no option but to release the accused on bail.
The record transpires that the accused was arrested on 10.08.2019, the statutory limit was completed in August, 2021. Normally under third proviso of Section 497(i) Cr.P.C an under trial prisoner shall he release after expiry of respective period without trial concluding. The fourth proviso is an exception; it has to form opinion that the accused was previous convict or criminal, one of the category described therein. In this regard reliance is placed on the case of Zahid Hussain Shah v. The State PLD 1995 SC 49, whereby it has been held as under: "The right of an accused to be enlarged on hail under the 3rd proviso to section 497(1), Cr.P.C. is a statutory right which cannot be denied under the discretionary power of the Court to grant bail.
The right of an accused to get hail under the 3rd proviso of section 497(1). Cr.P.C is not left to the discretion of the Court but is controlled by that provision. The bail under the 3rd proviso (ibid) can be refused to an accused by the Court only on the ground that the delay in the conclusion of the trial had occasioned on account of any act or omission of the accused or any other person setting on his behalf. The bail under the 3rd proviso ibid can also be refused by the Court if the case of the accused fell under the 4th proviso to section 497(1), Cr.P.C. In all other cases the Court must grant bail'. In the case at Wazir Khan v. State 1983 SCMR 427, the petitioner was refused bail by the High Court under the 3rd proviso to section 497, Cr.P.C. on the ground that the delay in the trial had occasioned on account of abscondence of the co-accused in the case. This Court while admitting the petitioner in that case to bail observed as follows:-- "We issued notice to the State and have heard both the learned counsel for the petitioner as well as the learned counsel appearing on behalf of the State. The latter informed that Muhammad Khan, co-accused who is a Naik in the Pakistan Army has, indeed not been apprehended and the reason for the inability of the police to arrest him is that the Military authorities have refused to surrender his custody. From this it is obvious that the delay which has occurred in the commencement of the trial is neither attributable to the petitioner nor to any other person acting on his behalf and it is not proper that the petitioner should suffer merely because the police is unable to apprehend Muhammad Khan, co-accused. The petition is, therefore, converted into appeal and allowed.
Reliance may also be placed on the case of Syed Raza Hussain Bukhari v, The State PLD 2022 SC 743.
7. There is no evidence on record that the applicant is hardened, c disparate or dangerous criminal within the meaning of that expression as used in the fourth proviso of Section 497(1) Cr.P.C.
Reference can be made to the case of Nadeem Samson v. The State PLD 2022 SC 112, whereby it has been observed as under:
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:
(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 front 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.
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.
10. We have examined the record of the case and found that there is no delay in conclusion of the trial till expiry of the two years period of detention of the petitioner on 25.11.2019, which can 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. Any delay attributable to the petitioner after the expiry of the said period is not relevant for determining his right to be released on bail on the statutory ground provided in the 3rd proviso to Section 497(1), Cr.P.C. Nor he appears, in the facts and circumstances of the case to be a hardened, desperate or dangerous criminal" who is likely to seriously injure and hurt others without caring for the consequences of his violent act and will thus pose a serious threat to the society if set free on bail. The petitioner is, therefore, entitled to be released on bail as a matter of right not as a concession. The delay in conclusion of the trial, noted by the High Court, attributable to the counsel for the petitioner representing him before the trial court, relates to the period after expiry of the continuous two year period since detention of the petitioner in the case: thereforee, it could not have been considered by the High Court for determining the right of the petitioner to be released on bail under the 3rd proviso to section 497(1), Cr.P.C.
In view of above, the application is allowed. The applicant namely Kamal-ud-Din son of Wandad is admitted to bail under Sections 302,324, 34, P.P.C. in case FIR No.32/2016, Police Station Bhoosa Mandi, Quetta, subject to furnishing surety in the sum of Rs.10,00,000/- (Rupees Ten lacs) with P.R bond of the like amount to the satisfaction of the trial court or Additional Registrar of this Court. The trial court is directed to decide the case possibly within a period of two months without unnecessary adjournment.
Needless to observe that the observations made in this order are tentative in nature and shall have no bearings on merits of the case at trial.