Through instant petition, Riaz Shah (petitioner/accused) has sought post-arrest bail in case arising out of F.I.R. No.432/2009 dated: 17.09.2009 registered under Sections: 302, 324, 109, 34 PPC (during investigation offences under Sections: 337-D, 337-F(v) PPC were also added subsequently) at Police Station: Sadar Muridke, District: Sheikhupura.
2. After hearing learned counsel for the parties, learned Deputy Prosecutor General and going through the available record with their able assistance, it has been noticed that briefly, as per first information report, petitioner caused injury with firearm weapon at back of Zafar Hussain (son of the complainant/deceased of the case) and he also caused firearm injury at left arm of Shaukat Ali (injured witness of the case). Aforementioned ocular version has been supported/confirmed by postmortem examination report of the deceased as well as medico-legal examination certificate of aforementioned injured. Learned Deputy Prosecutor General under instructions of police official present in Court and after herself going through the available record apprises that aforementioned allegations levelled against the present petitioner have been established after thorough investigation. Therefore, reasonable grounds are available on record to connect the petitioner with the commission of alleged offences, hence he has no case for grant of post-arrest bail on merits.
3. However, instant petition has also been filed by the petitioner while seeking grant of bail on statutory ground of delay in conclusion of trial. In this regard, it is important to mention here that this case has its own peculiar facts and circumstances; the occurrence in this case took place in the year 2009 and the petitioner was arrested in this case on 23.10.2017; challan report was prepared on 10.11.2017; however, as per copy of order sheet available at Page No.54 of this petition, challan report was received in the court on 25.09.2018; petitioner and his co-accused namely Amir Ali Shah filed application before learned trial court for declaring them juvenile and learned trial court declared them so i.e. juvenile vide order dated: 19.02.2019 which was challenged by the complainant before this Court through Criminal Revision No.30840/2019, said petition came up for hearing before this Court on 21.05.2019 and further proceedings before learned trial court were stayed by this Court on 21.05.2019; thereafter, when said revision petition again came up for hearing on 13.02.2020, learned counsel for the complainant i.e. petitioner in said revision petition was stated to be indisposed and request for adjournment was made on his behalf and said revision petition was adjourned.
Perusal of order sheets of said revision petition reveals that no adjournment was sought on behalf of present petitioner and his co-accused in the same. Though said revision petition has been disposed of today, however, it is admitted fact that proceedings of the learned trial court remained stayed since 21.05.2019 till now due to aforementioned order and revision petition did not remain pending due to any act/omission of present petitioner or any other person acting on his behalf. It is trite law that act of court should not prejudice anyone and in this regard matter was already discussed and decided by august Supreme Court of Pakistan for resolving this controversy in the case titled as "Fida Hussain vs. the State and others" (PLD 2002 SC 46); relevant portion of the same is hereby reproduced: "In the perspective of third proviso (ibid), we may further observe that the petitioner cannot be detained in jail for indefinite period for the act of the Court in that there was a status quo for almost three years. It is well-settled that no person shall suffer for the act of the Court. Since the proceedings were stayed at the instance of co-accused Abdul Ghafoor and this Court had itself ordered early hearing of the appeal, the petitioner cannot be found at fault for the delay, as suggested."
Therefore, said delay cannot be attributed to the present petitioner and bail cannot be declined to the petitioner for said reason.
Petitioner was arrested in this case on 23.10.2017 and more than five years have already elapsed after his arrest and he is behind the bars since then. Contention raised by learned counsel for petitioner that even after submission of challan and till order regarding stay of proceedings in the trial passed by this Court (mentioned above), there was only one adjournment on part of the accused during trial which was on 07.05.2019 and case was adjourned only for 13 days i.e. till 20.05.2019, neither could be refuted by learned Deputy Prosecutor General nor by learned counsel for complainant. Perusal of order sheets annexed with this petition reveals that after his arrest, there is no intentional or tactful delay on part of petitioner in conclusion of the trial. Even any material is not available on record to show that petitioner is a hardened, desperate or dangerous criminal or is accused of an act of terrorism or previously convicted offender. After stay of proceedings of trial on 21.05.2019 by this Court, now almost 03 years and 05 months have elapsed.
Therefore, it is not only the question of bail on statutory ground of delay in conclusion of trial but it is also the case of hardship because petitioner is behind the bars for more than last five years without any fault on his part especially after stay of proceedings in trial of this case from 21.05.2019 till now.
4. Now coming to the question that application was filed by the present petitioner and co-accused for getting them declared as juvenile and the time was consumed in deciding the same and either said consumed time can disentitle petitioner for grant of bail on statutory ground of delay in conclusion of trial, answer is in negative because this question has already been dealt with by the august Supreme Court of Pakistan in case titled as "Saleem Khan versus The State and others"
(PLD 2020 SC 356) that such time which was consumed by the petitioner in order to avail his legal right/remedy does not come within the definition of intentional or tactful delay by the accused.
5. Now adverting to the abscondence i.e. petitioner remained absconder for a considerable period but again question does arise that if petitioner is claiming bail on statutory ground of delay in conclusion of trial and particularly when he is behind the bars for more than five years for no fault on his part regarding delay in conclusion of trial then whether abscondence can create any hurdle in the way of grant of bail on statutory ground of delay in conclusion of trial, to the petitioner. Before answering this question, Section: 497 Cr.P.C. is reproduced: "497. When bail may be taken in cases of non-bailable offence. (1) When any person accused of non-bailable offence is arrested or detained without warrant by an officer-in-charge 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 appears 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 the Court may direct that any person under the age of sixteen years 2[or any woman] or any sick or infirm person accused of such an offence be released on bail: 3Second, third and fourth provisos as added by Ordi. V of 2010 omitted by Act VIll of 2011: Provided further that a person accused of an offence as aforesaid shall not be released on bail unless the prosecution has been given notice to show cause why he should not be so released: [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
(b) who, being accused of an offence punishable with death, has been detained for such offence for a continuous period exceeding two years and in case of a woman exceeding one year and whose trial for such offence has not concluded.
Provided, further that the provisions of the foregoing 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.
(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.]4
(3) An officer or a Court releasing any person on bail under sub-section (1) or sub-section (2) shall record in writing his or its reasons for so doing.
(4) If, at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody on the execution by him of a bond without sureties for his appearance to hear judgment delivered.
(5) A High Court or Court of Session and, in the case of a person released by itself, any other Court may cause any person who has been released under this section to be arrested and may commit him to custody."
(emphasis added)
Perusal of Section: 497 Cr.P.C. reveals that in its sub-Section (1) word "May" has been used i.e. the person may be released on bail ......, similarly in first proviso of sub-Section (1) again word "May" has been used i.e. that Court may direct any person under the age of sixteen years or woman or any sick or infirm person accused of such an offence be released on bail ....., however in third proviso, the word "Shall" has been used i.e. that the court shall except where the delay in the trial has been occasioned by an act or omission of the accused or any other person acting ......; similarly in sub- Section (2) of Section 497 Cr.P.C. the word "Shall" has been used i.e. the accused shall, pending such inquiry, be released on bail ......, Therefore, if case for grant of bail on the ground of delay in conclusion of trial under 3rd proviso of sub-Section (1) of Section: 497 Cr.P.C. or on the ground of further inquiry under sub-Section (2) of Section 497 Cr.P.C. has been made out, then bail is to be granted to the accused as a matter of right and not as concession; in this regard, guidance has been sought from the case of "Nadeem Samson versus The State and others" (PLD 2022 Supreme Court 112); relevant portion whereof is hereby reproduced:- "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 year 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." (emphasis added) and in this regard case of "Shakeel Shah versus The State and others" (2022 SCNM 1) can also be advantageously referred and relevant portion is hereby reproduced:- "9. We have, therefore, come to the conclusion that the delay in concluding the trial of the petitioner beyond the period of one year from the date of his arrest/detention has not been occasioned by an act or omission of the petitioner or any other person acting on his behalf, and that in the facts and circumstances of the case the accused does not appear to be a hardened, desperate or dangerous criminal. The petitioner has, thus, made out a case for grant of bail as a matter of right under the third proviso to section 497(1), Cr.P.C. (emphasis added)
It is by now well settled that when accused becomes entitled for grant of bail as a matter of right, then he cannot be declined such relief due to abscondance which is matter of propriety. There is a plethora of case law that when case of the prosecution requires further inquiry and falls within the ambit of subsection (2) of Section 497 Cr.P.C., then he is granted bail as a matter of right and cannot be declined said relief due to his abscondance which is a matter of proprietary and in this regard, case of "QAMAR alias MITHO versus THE STATE and others" (PLD 2012 Supreme Court 222) can be advantageously referred and relevant portion from the same is reproduced: "4. It has vehemently been argued by the learned Additional Prosecutor-General, Punjab appearing for the State that the petitioner had remained a Proclaimed Offender for a period of about four years and, thus, he is not entitled to any indulgence in the matter of bail. We have, however, not felt persuaded to agree with the learned Additional Prosecutor-General in this regard. It has already been held by this Court in the cases of Ibrahim v. Hayat Gul and others (1985 SCMR 382) and Muhammad Sadiq v. Sadiq and others (PLD 1985 SC 182) that in a case calling for further inquiry into the guilt of an accused person bail is to be allowed to him as of right and such right cannot be refused to him merely on account of his alleged abscondance which is a factor relevant only to propriety."
On the same analogy, when trial has not concluded within stipulated period and accused is entitled to grant of bail as a matter of right and not as concession, then, said relief cannot be declined due to abscondance which is matter of propriety. Even otherwise in murder case, accused usually disappears after registration of the case either involved rightly or wrongly and in this regard, guidance has been sought from the case of "Gul Nawab versus The State through A.G. Khyber Pakhtunkhawa and another" (2022 SCMR 547); relevant portion whereof is hereby reproduced:- "6. ..........
So far as the argument of learned Law Officer that the petitioner remained absconder for a period of nine years is concerned, we are of the view that mere abscondance cannot be a ground to discard the relief sought for as it is established principle of law that disappearance of a person after the occurrence is but natural if he is involved in a murder case right or wrongly. Reliance is placed on Rasool Muhammad v. Asal Muhammad (1995 SCMR 1373). Another judgment wherein the petitioner remained absconder for considerable time and was involved in many other criminal cases but despite that he was given bail on merits is Moundar and others v. The State (PLD 1990 SC 934). Reliance is also placed on Muhammad Tasaweer v. Hafiz Zulkarnain (PLD 2009 SC 53).
This Court in various judgments has held that mere absconsion is not a proof of guilt, hence, cannot be made sole ground to discard the relief sought for. Even otherwise, it is most cardinal principle of law that each criminal case has its own facts and circumstances and that have to be weighed accordingly."
So in the peculiar facts and circumstances of the case, bail cannot be declined to the petitioner due to abscondance.
6. Now another question arises that from which date period for statutory ground of delay in conclusion of trial shall be counted and answer to this question is very simple that petitioner was arrested in this case on 23.10.2017 and same date shall be considered for calculating period for considering statutory ground of bail due to delay in conclusion of trial and in this regard guidance has been sought from the case of "Shakeel Shah versus The State and others" (2022 SCMR 1), "Nadeem Samson versus The State and others" (PLD 2022 SC 112) and "Khawar Kayani versus The State and others" (PLD 2022 SC 551).
7. In view of what has been discussed above, though bail has been declined to the petitioner on merits, however, instant petition for bail is allowed on statutory ground of delay in conclusion of trial and Riaz Shah (petitioner) is admitted to post-arrest bail in the case subject to his furnishing bail bonds in the sum of Rs.500,000/- (five hundred thousand only) with two sureties in the like amount to the satisfaction of learned trial Court.
8. It goes without saying that observations mentioned above are just tentative in nature, strictly confined to the disposal of instant bail petition and will have no bearing upon trial of the case, which would be decided by the learned trial court expeditiously. Needless to add that if petitioner will create any hurdle in the way of conclusion of trial, then complainant as well as the State would be at liberty to move for recalling of this order.