SADIQ ALI, J.- Through the petition in hand, petitioners seek their release on bail on statutory delay in conclusion of trial within the stipulated period in case FIR No.124 dated 02.07.2019 registered under Sections 302 / 34 PPC at Police Station Lassan Nawab District Mansehra.
2. Precisely stated facts of the case are that accused-petitioner, after having been arrested in the referred FIR on 27.12.2022, had applied for their post arrest bail before learned trial court, which was declined to him on merit, followed by applying to this court which too met the same fate. However, when their trial could not be concluded within the statutory period of two (02) year, he had moved their bail application before learned Additional Sessions Judge-IV, Mansehra, which was dismissed vide order dated 25.02.2025. Felt aggrieved from the ibid order, accused-petitioner has now filed the instant bail application on the ground of statutory delay in conclusion of trial within the stipulated period of two (02) year.
3. I have heard arguments of learned counsel for the parties as well as learned Assistant Advocate General and gone through the record.
4. Perusal of record reveals that at the earlier round of litigation, bail plea of petitioner had been declined to him on merit, however, when their trial could not be concluded within the stipulated period, he has prayed for post arrest bail on the ground of statutory delay in conclusion of trial. In this case, the accused-petitioner had been arrested on 27.12.2022, supplementary challan in the case was put in court on 18.01.2023 while formal charge against him was framed on 11.03.20223, however, up till now trial could not be completed.
5. Learned counsel for petitioner contended that delay in conclusion of trial is not attributable to accused-petitioner while learned counsel for complainant stated that trial in the case had been delayed due to strike of bar and non-availability of PWs.
6. Bare reading of order-sheets reveal that no doubt delay may be partly attributable to accused- petitioner as on some occasions his counsel had sought adjournments due to his pre-occupation before superior courts but it is important to be noted that if total period of detention of the accused, excluding the period of delay on the part of accused is counted, even then he is entitled to the concession of bail, as he is behind the bar for more than two (02) years. Moreover, on majority of dates the case was being adjourned due to non-availability of prosecution witnesses.
Besides, by now it is well settled that mere adjournments on the part of learned counsel appearing on behalf of accused cannot be counted as an act or omission on behalf of the accused to delay the conclusion of trial, unless the same are sought without any sufficient cause on crucial hearings.
Reliance in this respect may here be placed on the judgment delivered by Hon'ble Supreme Court of Pakistan in the case of "Shakeel Shah Vs. The State & others" reported as 2022 SCMR 01 where it has been held as under: "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."
7. In the case in hand accused was arrested on 27.12.2022 and till date he is languishing in prison, which period, if counted, comes to about two (02) years, two (02) months and twenty-one (21) days, while according to Sections of law, with which he was charged, his trial under 3rd proviso (b) to Section 497 (1) Cr.P.C was required to have been completed within two (02) years. The Hon'ble Supreme Court of Pakistan while elaborately discussing this point in a judgment delivered in the case of "Nadeem Samson Vs. The State & others" reported as PLD 2022 SC 112 has held that "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 date when the charge is framed and trial commenced." In this context, further reliance is also placed on the judgment reported as "Muhammad Usman versus The State and another (2024 SCMR 28), wherein it was held as under: "The object of recognition of a right to be released on bail on statutory ground, subject to meeting the conditions described tinder the third and fourth provisos of section 497(1) of the Cr.P.C. is to ensure that criminal trials are not unnecessarily delayed and that the prosecution is not enabled to prolong the incarceration or hardship of an accused awaiting trial. The right of an accused to seek bail on statutory grounds cannot be defeated for any other reason except on the ground as has been explicitly described under the third and fourth provisos to section 497(1) of Cr.P.C. The accused becomes entitled to bail as of right after the statutory period expressly stated in clauses
(a) and (b), as the case may be, have expired and the trial has not concluded. This accrual of right is manifest from the language of the third proviso. Such a right can only be defeated if the prosecution is able to show that the delay in the trial was attributable to an act or omission of the accused or a person acting on his behalf. If the prosecution succeeds in showing to the satisfaction of the court that the accused was at fault then the right stands forfeited. It has been held by this Court that the right recognized Linder the third proviso of section 497(1) cannot be denied to an accused on the basis of discretionary powers of the court to grant bail. The right has not been left to the discretion of the court, rather, its accrual is subject to the fulfillment of the conditions mentioned under the third proviso of section 497(1) of the Cr.P.C. Moreover, while calculating the quantum of delay attributable to an accused, the court is required to consider whether or not the progress and conclusion of the trial was in any manner delayed by the act and omission on the part of the accused. While ascertaining the delay, the cumulative effect in disposal of the case has to be considered and its assessment cannot be determined on the basis of mathematical calculations by excluding those dates for which adjournments had been sought by the accused or the latter s counsel. The main factor for consideration is the attendance of the witnesses and whether, despite the matter having become ripe for the recording of evidence, whether the delay was caused by the defence. The recording of the statement of a last witness would also not defeat the right recognized under the third proviso and it would be unreasonable to conclude that the trial has been completed."
Similarly, further reliance is also placed on the judgments reported as 2024 YLR 2029, 2015 P.Cr.L.J 259 & 2018 P.Cr.L.J 140.
8. As regards the category of accused mentioned in sixth proviso, it will be appropriate to refer the case reported as `Moundar Vs The State' (PLD 1990 SC 934) wherein, the Full Bench of august Supreme Court of Pakistan held as under: "It is quite plain that the normal rule stipulated in the Third proviso to section 497 was that an under trial prisoner shall be released, after expiry of the respective period, without the trial concluding. The Fourth proviso is in substance an exception to the aforesaid general rule contained in the Third proviso. Before the Court applies the exceptional provisions of the Fourth proviso, it has to form an opinion that the accused was a previous convict or a criminal of one of the categories described therein. The words are "in the opinion of the Court". Such opinion cannot be obviously subjective but must be based upon materials placed before the Court, reasonably supporting the conclusion that the person concerned is a criminal of the classes described. The word "criminal" has not been defined. It will not be proper and indeed would be difficult to define it or give it a specific meaning. However, it is a common word of the English language. According to the Shorter Oxford English Dictionary the word carries several meanings, including the meaning-- a person accused of a crime. In the context of the provisions under construction, we feel that the word cannot be construed in the technical sense, namely, that a formal accusation must be made against the person or that he should have been adjudged guilty of a charge in a Court of law. It appears to have been used in the sense of a person who violates the law of the land. The three adjectives qualifying the word "criminal" may also be examined.
According to the same dictionary the word "harden" has been defined to mean, inter alia, (1) to render or make hard; to indurate, (2) to embolden, confirm, (3) to make callous or unfeeling and
(4) to make persistent or obdurate in a course of action or state of mind. The word "hardened" has also been defined to mean "made hard, indurate; rendered callous; hardhearted; obdurately determined in a course".
The same dictionary gives the meaning of the word "desperate" inter alia, in relation to person: driven to desperation hence reckless, violent, ready to risk or do anything.
The, same dictionary gives the meaning of the word "dangerous", inter alia, as fraught with danger or risk; perilous, hazardous, unsafe."
I am in respectful agreement with the above enunciation of law. In the instant case, the prosecution has not placed on record anything before the Court to indicate that the petitioner is a hardened, desperate or dangerous criminal or a previously convicted person for an offence punishable with death or imprisonment for life or a person involved in the act of terrorism.
9. Furthermore, speedy and fair trial is a fundamental right of every accused person as envisaged under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 whereas admittedly trial in the case is in progress, however, there is no hope of its completion in near future, thus, keeping the petitioner behind bar for indefinite period will serve no useful purpose.
10. In view of what has been discussed above and because delay in conclusion of trial is not solely attributable to the present accused-petitioner, therefore, he is held entitled to bail on statutory ground as he remained incarcerated in jail for continuous period of more than two (02) years. In such circumstances, the instant bail application is allowed and petitioner is admitted to bail provided he furnishes bail bonds in the sum of rupees two lac (Rs.2,00,000/-) with two sureties each in the like amount to the satisfaction of Maga / Duty Judicial Magistrate, who shall ensure that the sureties are local, reliable and men of means.
Above are the detailed reasons of my short order of even date