MUHAMMAD IJAZ KHAN J. This order is directed to dispose of an application filed by petitioner Zaheer Elahi son of Muhammad Zaman for the grant of post arrest bail in a ease registered vide FIR No.386 dated 22.05.2020 under sections 302/324/341/347/107/34, P.P.C read with section 15 of The Khyber Pakhtunkhwa Arms Act, 2013 at Police Station Khanpur Haripur, on the statutory ground.
2. Allegations against the present petitioner as per contents of the First Information Report are that he along with co-accused in furtherance of their common intention, has wrongfully restrained the complainant party and has committed qatl-e-amd of Mohsin (son of the complainant Shaukat Zaman) as well as attempted to commit qatl-e-amd of complainant and his son Jawad Ahmad by firing at them with pistol.
3. Arguments of learned counsel for the parties as well as learned, Assistant Advocate General appearing on behalf of State were heard in considerable detail and the record perused with their able assistance.
4. At the very outset, it was noted that the present petitioner has been arrested on 26.05.2020 and till date, he has remained incarcerated in jail for the last four years, 7 months and 21 days. The order-sheets of the learned trial court for the last almost four and a half years were gone through and as it is duly reflected in the instant bail petition that on almost two dozens of dates, learned counsel for the present petitioner has sought adjournment, however, even all these dates which come to 204 days are excluded even then the statutory period of the present petitioner has since been completed.
5. Though learned counsel for the petitioner states that delay exclusively attributed to the present petitioner is almost 10 months, whereas there is a contributory delay of 3 months as well but even if those thirteen months are also excluded then the statutory period of the petitioner has already completed, therefore, he has earned a right to be released on bail as provided under third proviso to section 497, Cr.P.C especially when no material is available on the record that essential ingredient of proviso four of section 497, Cr.P.C do exist against the present 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 by the prosecution 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 or any person acting on his behalf and if the accused is a previous convict or if he is a hardened, desperate or dangerous criminal. The Court was informed 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. The Supreme Court of Pakistan in a recent case[1], has held that 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 proviso 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 accural of right is manifest from The language of the third proviso. Suhi 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 under the third proviso of section 497(1) cannot be denied to an accused on the basis of discretionary powers of the court to grant bait. 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.
6. The Court was informed that being an oldest case on the diary of the learned trial Court, this case is being proceeded on day to day basis and learned counsel for the respondent/complainant has also shown his apprehension that if the present petitioner is released on bail then the delay would be caused in the conclusion of trial, however, it is clarified that the learned trial court has to proceed with this case on day to day basis it being an oldest case and will conclude the trial positively within one month.
7. Accordingly, this bail petition is allowed and the accused/petitioner is directed to be released on bail provided he furnishes bail bonds in the sum of five hundred thousand rupees (Rs.500,000/-), with two sureties in the like amount each to the satisfaction of the learned trial Court, who shall ensure that the sureties must be his 'relatives or co-villagers, reliable and men of means.
Observations recorded hereinabove are purely tentative in nature and should in no way prejudice an independent mind of learned trial court which needs to appraise the evidence strictly in accordance with law and merits of the case.
1. Muhammad Usman v. The State and another case (2024 SCMR 28).