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 -

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.

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.

We have heard the arguments advanced by the learned

counsel for the parties and perused the record of the case.

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

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.

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

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