Case law after arrest bail on statutory ground.
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Jamal Khan Mandokhail
Mrs. Justice Ayesha A. Malik
Mr. Justice Syed Hasan Azhar Rizvi
Crl.P.L.A No.238/2024
[Against the order dated 04.03.2024 passed by the Lahore High Court, Lahore
passed in Crl. Misc No. 68511-B/2023]
Adnan Shafai
…Petitioner(s)
Versus
The State & another
…Respondent(s)
For the Petitioner(s)
: Zill-E-Huma, ASC
Mr. Muhammad Amir Malik, AOR
For the State
: Mr. Rashdeen Nawaz Kasuri,
Additional Attorney General for
Pakistan
Mr. Irfan Zia,
Additional PG, Punjab
Naeem Sajid, Inspector FIA, Lahore
Huma Noreen Hassan,
Legal
Consultant, Pak Railway
For the Complainant
: Mian Sohail Anwar, ASC.
Date of Hearing
: 05.06.2024.
JUDGMENT
Syed Hasan Azhar Rizvi,:- Through the present
petition, the petitioner seeks leave to appeal against the order of
Lahore High Court, Lahore, dated 04.03.2024, (Impugned Order)
whereby the post-arrest bail has been declined to him in FIR
No.10/2022 dated 05.07.2022, registered under sections 109 and
409 PPC read with section 5(2) of the Prevention of Corruption Act,
1947 and Section 3/4 of Anti-Money Laundering Act, 2010 at
Police Station FIA, Anti-Corruption Circle, Lahore.
Crl.P.L.A No.238/2024 - 2 -
2.
Briefly, the factual background of the case is that the
petitioner being a Project Director received cash amount of Rs.
15.989 Million involved in 101 local purchase cases. Out of 101
local purchase cases, 33 were matured for financial year 2020-
2021 and the remaining 68 cases were available with him when he
relinquished the charge of post of PD/SR/100 Locos on
24.05.2021. Consequently, FIR was registered against the
petitioner on the inquiry report conducted by the officials of
Pakistan Railways. The inquiry committee found that the petitioner
being competent to sanction and withdraw cash and local
purchase is responsible to adopt proper procedure and its account
but failed to do.
3.
The learned counsel for the petitioner contends that
the petitioner seeks his post-arrest bail on statutory ground only.
The Petitioner’s trial could not be concluded due to the consistent
absence of prosecution witnesses; there is not a single
adjournment sought by the petitioner or his counsel on the dates
of the hearing; it is the prosecution that is responsible for causing
a delay in the conclusion of the trial.
4. The learned Law officers assisted by the counsel for the
complainant contend that petitioner has caused delays in the
conclusion of trial by repeatedly filing baseless applications, which
have consumed substantial time of Court. Therefore, he is not
entitled to post-arrest bail on statutory grounds, as his actions
have contributed to the trial's delay.
5.
We have heard the arguments advanced by the learned
counsel for the parties and perused the record of the case.
6.
This case does not involve any crime punishable by
death. Under the third proviso to Section 497(1) of the Cr.P.C, a
Crl.P.L.A No.238/2024 - 3 -
statutory ground exists for granting post-arrest bail to an accused
due to delays in conclusion of the trial. A person accused of an
offence not punishable by death has the right to be released on bail
if they have been detained for over a year, provided the delay in the
trial's conclusion was not caused by their actions or the actions of
someone on their behalf, and situation does not fall under the
fourth proviso to Section 497(1) of the Cr.P.C.
7. This Court in the case of Shakeel Shah,1 elaborately
explained the concept of bail on statutory grounds and ruled that
it is subject to two exceptions:
a) Delay in conclusion of the trial if occasioned by an act or
omission of the accused or by any other person acting on his
behalf;
b) The accused, a hardened, desperate or dangerous criminal,
in the opinion of the Court.
Now, we proceed to examine the instant case on the touchstone of
Shakeel Shah case (supra) to determine whether it falls in any of
exceptions laid down therein.
I. DELAY IN CONCLUSION OF THE TRIAL IF OCCASIONED BY
AN ACT OR OMISSION OF THE ACCUSED OR BY ANY OTHER
PERSON ACTING ON HIS BEHALF
8.
This court in the Shakeel Shah case (supra)
expounded this exception and explained it in the following terms:
“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
1 Shakeel Shah versus State and others, 2022 SCMR 1.
Crl.P.L.A No.238/2024 - 4 -
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.”
(emphasis added)
9. In the present case, the petitioner was arrested on
05.08.2022 and the charge against him was framed on
27.06.2023. He made an application for his post-arrest bail on
statutory ground on 07.08.2023. The order sheets of the period
commencing from the date of arrest, date of framing of charge till
the date of his filing the application for bail does not reflect any
design, pattern, or concerted effort on the part of the accused to
delay the conclusion of the trial. During this period, he made two
formal applications namely an application under section 265-K
CrPC and an application for excluding Khurram Iqbal from the
proceedings of this case. Perusal of these applications do not
reflect any design, pattern, or concerted effort by the petitioner to
delay the conclusion of the trial. An application for the protection
of the accused’s rights and just for fair trial guaranteed under
Article 10-A of the Constitution of Pakistan, 1973 does not amount
to any design, pattern, or concerted effort by the accused to delay
the trial. Thus, the Petitioner’s case does not fall within the ambit
of first exception.
II. THE ACCUSED, A HARDENED, DESPERATE OR
DANGEROUS CRIMINAL, IN THE OPINION OF THE COURT
10.
Although this exception is not pleaded against the
Petitioner before this court nor mentioned anywhere in the
impugned orders however, it is pertinent to consider whether the
petitioner’s matter falls under the second exception. The phrase “a
Crl.P.L.A No.238/2024 - 5 -
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."2
11.
The tentative assessment of the material placed before
this Court shows that Petitioner is not a hardened, desperate, or
dangerous criminal. He is a government employee working in
Pakistan Railways who is not likely to cause any injury to others.
12.
In view of what has been discussed above, it is
manifest that a case of statutory ground of delay in the conclusion
of trial is prima facie made out within the remit of Section
497 Cr.P.C. and judgments rendered by this court.3
13.
For the above reasons, this petition is converted into
an appeal and allowed. The impugned order of the High Court
dated 04.03.2024 is set aside. The petitioner is granted post-arrest
bail subject to furnishing his bail bonds in the sum of Rs.
100,000/- with one surety in the like amount to the satisfaction of
Trial Court.
14.
The Trial Court should proceed with the matter
expeditiously and decide the same within a period of 60 days. The
petitioner and his counsel should cooperate with the trial Court
and no unnecessary adjournment shall be granted. In case of
misuse of concession of bail, the respondent/complainant would
be at liberty to avail remedy in accordance with the law.
2 Nadeem Samson v. State, PLD 2022 SC 112.
3
Ibid, 2022 SCMR 1
Crl.P.L.A No.238/2024 - 6 -
15.
Before parting, it is reiterated that the observations
made hereinabove are tentative in nature. The trial court is at
liberty to independently adjudicate the case on its own merits,
without being influenced by the observations made hereinabove.
16. Above are the reasons of our short order of even date.
Judge
Islamabad,
5th June, 2024
APPROVED FOR REPORTING
Judge
Judge
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