INAMULLAH KHAN, J.- By pressing into service the third proviso (b) to section 497(1), Cr.P.C., the petitioner Azam Khan son of Mian Khan is seeking post-arrest bail in case No.36, dated 25.02.2022, registered under Section 377 PPC read with Section 53 of the Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010, of Police Station Kulachi, District D.I.Khan.
2. Brief facts of the case are that on 25.02.2022 at 15:10 hours, complainant Muhammad Zubair, accompanying his nephew Mubin Khan, aged about 7/8 years, reported to the police that at 12 0' clock, his nephew returned to the house from the school. He wanted to take him for Jumma prayers but he was not available in the house. At 01 0' clock, he came out of the house and heard weeping his nephew in the nearby jungle/fields of Javed Khan. He rushed to the spot. On seeing him, the ,accused Azam Khan run away. His nephew told him that the accused forcibly brought him to the place of occurrence where he committed sodomy with him. On the report of complainant, instant case vide captioned FIR was registered against the petitioner.
3. I have heard the arguments of learned counsel for the parties and the learned AAG representing the State. Record was gone through with their valuable assistance.
4. Undoubtedly, the accused/petitioner was arrested on 25.02.2022, however, on completion of the investigation, challan was submitted on 19.5.2022, in the Court of Judicial Magistrate, Kulachi, and he proceeded with the trial despite of the fact that the offence was triable by Child Protection Court. The Magistrate concluded the trial on 18.02.2023, thereby passing the judgment of conviction. An appeal against conviction was filed by the petitioner in the Court of learned Sessions Judge, D.I.Khan, which was entrusted to the Court of learned Additional Sessions Judge-I, D.I.Khan, where it remained pending for about ten months, which was dismissed on 20.12.2023, with the observation that the same was filed before the wrong forum. Subsequently, the petitioner filed Cr.A.No.04-D of 2024, before this Court, which was accepted vide judgment dated 18.9.2024, the conviction and sentence was set aside and case was remanded to the Court of Sessions Judge, D.I.Khan, either to conduct the trial himself or assign the same to any other Additional Sessions Judge/Child Protection Court, by observing that the Judicial Magistrate was not competent to conduct the trial in the instant case.
5. In the above backdrop, the submission of challan and trial in the wrong forum could not be attributed to the accused/petitioner or any one acting on his behalf. The record transpires that after remand of the case by this Court, case file was received in the Court of Sessions Judge, D.I.Khan on 26.9.2024, which was entrusted to the Court of learned Additional Sessions Judge- II/GBV/Child Protection Court for disposal. On 11.10.2024, after compliance of provision under section 265-C, Cr.P.C, charge was framed against the accused.
The order sheet No.5 dated 30.10.2024 of the trial Court suggests that on said date due to absence of the defence counsel PWs Muhammad Ameen No.1322 and Majeed No.229 could not be examined and the case was adjourned to 07.11.2024. On 24.4.2025, due to absence of defence counsel, the case was adjourned, while on rest of the dates, the case was adjourned due to the absence of PWs or due to Reader's Note. There is no denial of the fact that almost the trial took one year in the Court of Judicial Magistrate, where the prosecution submitted challan against the accused, which was the main reason for delay. Similarly, ten months elapsed in appeal before the Court of Sessions and eight months in deciding appeal by this Court. Even after remand, seven months have elapsed, however, trial could not be concluded as yet. Needless to mention that from the date of arrest uptil now, the petitioner is pursuing his legal right, hence, he could not be penalized for the faults committed by the others. As per provision of Section 497(1) 3rd proviso (b), in case of statutory delay in the conclusion of trial of an accused for more than two years, he would have become entitled for grant of bail, as in the instant case. For considering the bail plea on the ground of statutory delay in conclusion of trial, is to be reckoned from the date of arrest of the petitioner, as held by Supreme Court of Pakistan in the case of "Shakeel Shah Vs. The State and others" (2022 SCMR 1), that: "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. The High Court has failed to correctly appreciate the scope of the third and fourth proviso to section 497(1), Cr.P.C in the light of the fundamental rights guaranteed by the Constitution. This petition is, therefore, converted into appeal and allowed: the impugned order is set aside, the application of the petitioner for grant of post arrest bail is accepted and he is admitted to post-arrest bail subject to his furnishing bail bond in the sum of Rs.100,000/- with one surety in the like amount to the satisfaction of the trial Court".
In the case of "Syeda Ayesha Subhani Vs. The State and others" (PLD 2023 Supreme Court 648), while endorsing the above dictum, it was held that: "The purpose and objective of the 3rd proviso, as observed by this Court in Shakeel Shah, is to ensure that the trial of an accused is conducted expeditiously and that the pre-conviction detention of a person accused of an offence not punishable with death does not extend beyond the period of one year. If the trial in such an offence is not concluded within a period of one year for no fault of the accused, the statutory right to be released on bail ripens in his favour unless his case falls within any of the clauses of the 4th proviso. This right of the accused creates a corresponding duty upon the prosecution to conclude the trial within the specified period of one year. If any act or omission of the accused hinders the conclusion of the trial within a period of one year, no such right will accrue to him and he would not be entitled to be released on bail on the statutory ground of delay in conclusion of the trial. But if after the rejection of his plea for bail on this ground, the accused corrects himself and abstains from doing any such act or omission in the year following such rejection but the prosecution fails to perform its duty in concluding the trial within the specified period of one year, a fresh right, that is to say, a fresh ground, would accrue in his favour."
In the case titled "Nadeem Samson Vs. The State & others" (PLD 2022 Supreme Court 112), the Honourable Supreme Court of Pakistan, for the guidance of Courts, has laid down some principles to appreciate the statutory ground of delay in conclusion of the trial pleaded by an accused person for grant of bail. The relevant excerpts from the said case reads 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 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."
(underlined is my emphasis)
6. It is pertinent to mention that the conviction of the accused/petitioner was set aside by this Court on the ground that the trial was not conducted by the competent Court under the Child Protection & Welfare Act, 2010, and his case was remanded for denovo trial to be conducted by the court of competent jurisdiction, and as such, the accused/petitioner cannot be left to suffer for the act of Court who incompetently tried the case against accused/petitioner in view of the maxim, "actus curiae neminem gravabit" meaning 'an act of the Court shall prejudice no one'. The statutory right to be released on bail under the third proviso to Section 497, Cr.P.C. is not merely a statutory right but also stands firmly on constitutional guarantees under Articles 4, 9 and 10-A of the Constitution. Under the said Articles the accused, like any other citizen enjoys the protection of law and to be treated in accordance with law; the accused cannot be deprived of liberty, except in accordance with law; and in determination of any criminal charge against him the accused shall be entitled to a fair trial and due process. These baskets of rights are available to an accused who enjoys a presumption of innocence in his favour and understandably cannot be subjected to an indefinite pretrial detention and therefore cannot be denied bail under the third proviso to section 497(1) of the Code unless there is convincing material that the delay has been occasioned by the act or omission of the accused himself or if his case falls under any of the exceptions under the fourth proviso to section 497 of the Code. While rendering this view, I am fortified by the dictum laid down by the august Supreme Court of Pakistan in the case titled "Rohan Ahmad Vs. the State & others" reported as PLD 2024 Supreme Court 492. Hence, the right of accused to be enlarged on bail under the third proviso to Section 497(1) of the Code is a statutory right which cannot be denied under the discretionary power of the Court to grant bail. In the case of "Muhammad Usman Vs. The state and another" reported in 2024 SCMR 28 it was observed that: "7. The object of recognition of a right to be released on bail on statutory ground, subject to meeting the conditions described under 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"
7. So far as the period served in the Jail during pendency of the appeal is concerned, suffice it to say that an appeal for the protection of the accused's rights and just for fair trial guaranteed under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 (the Constitution) does not amount to any design, pattern, or concerted effort by the accused to delay the trial. Guidance in this regard is derived from the verdict of august Supreme Court rendered in the case titled "Adnan Shafai Vs. The State & another" (2024 SCMR 1543). The august Court in the Rohan Ahmad's case was further pleased to observe that: "8. In this case the trial has been suspended by the High Court on the filing of the Criminal Revision by the petitioner and during the continuum of the said suspension, the statutory period of delay i.e., continuous period exceeding two years under clause (b) of the third proviso to Section 497(1), Cr.P.C. has lapsed. We have gone through the order sheet of the proceedings in the Criminal Revision which is still pending before the High Court and it has been over three years since the petitioner was arrested. The Criminal Revision has not progressed for no fault of the petitioner, there is nothing on the record that the delay has been occasioned by the act or omission of the petitioner. The delay has been mainly due to the act of the High Court as the case was repeatedly relisted and not taken up on several hearings for no fault of the accused and thus the indefinite delay in the trial has been due to the act of the High Court which cannot be attributed to the accused in any circumstance."
8. For the foregoing reasons, this petition is allowed and the accused/petitioner is directed to be released on bail subject to furnishing bail bonds in the sum of Rs:100,000/- (one hundred thousand) with two sureties, each in the like amount, to the satisfaction of Trial Court.
9. Above are the detailed reasons for my short order of even date.