MUHAMMAD IJAZ KHAN, J. This order is directed to dispose of an application filed by petitioner namely Muhammad Shafi son of Meer Muhammad, for grant of post arrest bail in case FIR No. 11 dated 13.01.2021 Registered under sections 302/324/336/337-D/34, P.P.C. at Police Station Beer, District Haripur, on the ground of statutory delay in conclusion of his trial.
2. Precisely, the facts of the instant petition are that the petitioner along with co-accused Musahib had altercation with complainant and his brother (since deceased). Petitioner during the altercation/scuffle opened fire at the complainant and his brother. Resultantly, complainant suffered firearm injuries while his brother died on the spot. The motive behind the occurrence was alleged violation of the grazing ground by accused party bought by complainant for grass.
3. Arguments of learned counsel for the parties as well as learned Astt: A.G. were heard in considerable detail and the record perused with their able assistance.
4. The record would reveal that the accused/petitioner was arrested on 17.01.2021 whereas, the challan was put in Court on 05.04.2021, however, till date even after lapse of more than three years and two months the prosecution has not been able to conclude its trial. All the order sheets of the learned trial court were gone through with the able assistance of the learned counsel for both the parties which indicate that in the earlier two years majority of the dates have been adjourned for determination of the medical condition of the co accused namely Musahib or non-availability of the PWs, non-availability of the presiding-officer, lawyers' community being on strike which factors of delay in conclusion of trial could not be attributed to the present accused/petitioner. There are a few which have been sought by the defence which comes to almost 41/42 (Ill only but even thereafter an extra one year time over and above two years has lapsed but the prosecution could not conclude the trial of petitioner. It may be noted that the third proviso to section 497, Cr.P.C conferred a right upon an accused person to be released on bail if he is charged for offences bearing punishment of death and if his trial is not concluded within two years, however, this right of an accused is subject to two exceptions i.e. if the delay in the conclusion of the trial is attributable to the accused/petitioner or any person acting on his behalf and if the accused/petitioner is a previous convict or if he is hardened, desperate or dangerous criminal. The record shows that the present accused/petitioner is neither previous convicts nor he could be termed as hardened, desperate or dangerous criminals, therefore, he has successfully crossed the two barriers to earn a right of bail under the third proviso to section 497, Cr.P.C.
5. It may also be clarified that when once an accused person succeeds to earn a right available to him under the law then such right could not be taken away by way of exercising any discretion.
Even otherwise release of a person on bail is not an order of acquittal and prosecution will be still having a level field to prove the charges against the accused/petitioner in the due course of trial.
Therefore, petitioner is entitled to the concession of bail on statutory ground as he has remained incarcerated in jail for continuous period of more than three years.
6. The Hon'ble Apex Court in the case of "Shakeel Shah v. The State and others" reported as 2022 SCMR 1 has dilated upon the applicability of third and fourth proviso to section 497, Cr.P.C by holding that; "that 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 of 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. Thus, mere mathematical counting of all the dates of adjournments sought for on behalf of the accused is not sufficient to deprive the accused of his right to bail under the third proviso. The statutory right to be released on bail flows from the constitutional right to liberty and fair trial under Articles 9 and 10A of the Constitution.
Hence, the provisions of the third and fourth provisos to section 497(1), Cr.P.C must be examined through the constitutional lens and fashioned in a manner that is progressive and expansive of the rights of an accused, who is still under trial and has the presumption of innocence in his favour. To convince the court for denying bail to the accused, the prosecution must show, on the basis of the record, that there is a concerted effort on the part of the accused or his counsel to delay the conclusion of the Subsequently, the Hon'ble Apex Court in the case of "Nadeem Samson trial by seeking adjournments without sufficient cause on crucial hearings and/or by making frivolous miscellaneous applications."
Subsequently, the Hon'ble Apex Court in the case "Nadeem Samson v. The State and others" reported as PLD 2022 SC 112, has further elaborated the spirit, scope and extent of proviso 3rd and 4th of section 497, Cr.P.C and has observed as follows;
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 the date of the detention of the accused in the case, not from the late 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's 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 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.
8. The same view was also affirmed by the Hon'ble Apex Court in its judgment rendered in the case of "Ali Asghar v. The State and others" reported as 2022 SCMR 970 by observing as follows; The report clearly shows that the delay is not attributable to the petitioner in any manner. A plain language of proviso 3 to subsection,(1) of section 497, Cr.P.C. clearly reveals that in cases of non-bailable offences, which are not punishable with death where the accused has been detained for a continuous period exceeding one year and it is found that the delay in the trial has not been occasioned due to any act or omission of the accused, the Court shall direct that the accused be released on bail. This Court has time and again held that liberty of a person is one of the most cherished attributes, perhaps more important than the other freedoms guaranteed under the Constitution of Islamic Republic of Pakistan, 1973, which cannot be taken away without exceptional foundations.
9. In view of the above, the instant bail application is allowed and the petilioner is directed to be released on bail provided he furnishes bail bonds in the stun of Rs. 300,000/- (three hundred thousand) with two sureties each in the like amount to the satisfaction of learned trial Court/MoD, who shall ensure that the sureties are close relative of petitioner, reliable and men of means and the learned trial court is directed to conclude the trial on priority basis.