SALAH-UD-DIN, J.- Petitioner namely Aftab-ud-Din, through instant petition, seeks his post arrest bail in case FIR No. 31 dated 20.02.2022, U/Ss 302, 324, 338-C, 114, 201, 203 PPC, R/W section 15-AA of P.S Skhakot, District Malakand.
2. As per contents of ibid FIR, complainant namely Shahab-ud-Din reported the matter to local police at casualty ward of Dargai hospital, whereby he initially charged unknown accused for making firing upon his deceased sister-in-law namely Mst. Naureen Bibi and his brother Aftab-ud- Din (petitioner herein). It was alleged by complainant in his report that his brother Aftab-ud-Din had contracted love marriage with Mst. Naureen, due to which her relatives were not happy. In view of report of complainant Murasila' was drafted which culminated into ibid FIR registered against unknown accused at P.S concerned. Subsequently, injured Aftab-ud-Din recorded his statement U/S 164 Cr.P.C and charged accused Ghawas, Naveed and Muhammad Ali for commission of the offence, however, later on, present petitioner Aftab-ud-Din was also arrayed as an accused in the case in hand.
3. Arguments of learned counsel for parties as well as learned Astt: A.G for State were heard and requisitioned record gone through with their valuable assistance.
4. It divulges from record that present petitioner was arrested in the case in hand on 07.3.2022. It is also part of record that once upon conclusion of a full-fledged trial present petitioner Aftab-ud-Din was convicted and sentenced under different sections of law by learned trial Court, on the strength of its judgment dated 22.11.2023. Feeling aggrieved from aforesaid judgment of his conviction, petitioner preferred criminal appeal No. 376-M of 2023, which was allowed by this Court by dint of its judgment dated 10.4.2025 and the case was remitted back to learned trial Court de-novo trial with certain directions. It is an admitted fact on both ends that since arrest; petitioner had remained behind the bars for 03-year & 07-months. No doubt, de-novo trial of the petitioner would obviously take sufficient time and as per 3rd proviso to section 497, Cr.P.C a period of 02 years has been provided for conclusion of trial. In context of the case in hand, petitioner is neither a hardened, desperate or dangerous criminal nor involved in any other criminal cases except the one referred above. Record further indicates that present petitioner has not made any visible attempts to delay the conclusion of his earlier trial, as such, he has successfully crossed the barriers to earn a right of bail under third proviso to section 497 Cr.P.C.
5. Hon'ble apex Court in case titled "Shakeel Shah v/s The State & others" reported as 2022 SCMR 1 has dilated upon 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 trial by seeking adjournments without sufficient cause on crucial hearings and/or by making frivolous miscellaneous applications."
Subsequently, Ho'ble apex Court in the case of "Nadeem Samson v/s The State & others" reported as PLD 2022 S.C. 112 and in the case of "Ali Asghar v/s The State & others" reported as 2022 SCMR 970 have further affirmed and clarified aforesaid view and thus on the touchstone as set by apex Court in the aforesaid judgments, present petitioner is also entitled for the concession of bail. Even otherwise, bail does not mean acquittal of accused but only change of custody from Government Agencies to sureties, who on furnishing bonds take responsibility to produce accused whenever required to be produced. (Reference can be made to case law 2023 P Cr. LJ 436).
6. It merits mentioning here that after insertion of Article 10-A in the Constitution of Pakistan, due process of law including speedy and fair trial has been recognized as a fundamental right of every accused person. Policy of criminal law is to bring an accused person to justice as speedily as possible and if he is found guilty, he may be punished and if he is found innocent he may be acquitted. Since delay in conclusion of his previous trial is not attributable to present petitioner alone nor it could be termed a contributory delay, therefore, he is entitled to concession of bail on statutory ground.
7. In view of above and leaving aside' other merits of the event, lest it may prejudice the case, of either party, instant bail petition is allowed and petitioner be released on bail, provided he furnishes bail bonds in sum of Rs. 100,000/- (one hundred thousand)1 with two sureties each in the like amount to satisfaction of area Judicial Magistrate/MOD, who shall ensure that sureties are local, reliable and men of means.
8. These are reasons for my short order of even date.