Bail granted in 489f on statutory ground .
عدالت نے مقدمے میں تاخیر کی قانونی بنیادوں پر محمد رؤف کی بعد از گرفتاری ضمانت منظور کی، یہ نوٹ کرتے ہوئے کہ وہ ایک سال اور دس ماہ سے زائد عرصے سے مسلسل نظربند رہے بغیر کسی تاخیر کے۔ عدالت نے اس بات پر زور دیا کہ ان حالات میں ضمانت کا حق قانونی استحقاق ہے نہ کہ محض رعایت۔ اس نے ٹرائل کورٹ کو تین ماہ کے اندر کارروائی مکمل کرنے کی ہدایت کی اور متنبہ کیا کہ ٹرائل کے عمل میں کسی قسم کی مداخلت ضمانت کو منسوخ کرنے کا باعث بن سکتی ہے۔
Form No. HCJD/C-121
ORDER SHEET
IN THE LAHORE HIGH COURT
JUDICIAL DEPARTMENT
Case No. Crl. Misc. No.16105-B of 2024
Muhammad Rauf vs
The State, etc.
Sr.
No.
Date of
order
Order with signature of Judge, and that of parties
or counsel, where necessary.
28.06.2024
Ms. Asifa Riasat, Advocate for the petitioner.
Rana Muhammad Shafique, Deputy Prosecutor General for the state
alongwith Muhammad Maalik, A.S.I. and record of the case.
Mian Shaukat Ali, Advocate for respondent No.2/complainant of the
case.
Through instant petition, Muhammad Rauf (petitioner/
accused) has sought post-arrest bail in case arising out of F.I.R.
No.565/2021 dated: 28.05.2021 registered under Section: 489-F
PPC at Police Station: City Jaranwala, District: Faisalabad.
This is second petition filed by the petitioner for grant of
post-arrest bail in the case before this Court whereas first petition
filed by the petitioner for post-arrest bail in the case before this
Court bearing Crl. Misc. No.13294-B of 2023 was dismissed on
merits vide order dated: 16.03.2023 passed by this Court (copy of
the order is available at Page No.13-14 of the petition). Thereafter,
petitioner filed Crl. Petition No.866-L of 2023 before Supreme
Court of Pakistan against aforementioned order dated: 16.03.2023
passed by this Court in Crl. Misc. 13294-B of 2023, which came
up for hearing on 06.12.2023 and learned counsel for the
petitioner contended there that right of bail on statutory ground
has been accrued in favour of the petitioner, therefore, in order to
file application before the trial court on this fresh ground i.e.
statutory ground, he wants to withdraw the petition for the time
being and same was dismissed as withdrawn (copy of the order is
available at Page No.19 of this petition) and relevant portion of
the order is hereby reproduced:-
“Learned counsel for the petitioner contends that during the
pendency of this petition a right of bail on statutory ground
has been accrued in favour of the petitioner and in order to
file an application before the trial court, on this fresh ground
i.e. statutory ground, he wants to withdraw this petition for
Crl. Misc. No.16105-B/2024
2
the time being. He may do so. This petition is dismissed as
withdrawn.”
Then petitioner filed application for post arrest bail on statutory
ground of delay in conclusion of trial of the case before trial court
and then before learned Additional Sessions Judge, Jaranwala but
same have been dismissed and now instant petition has been filed
for post-arrest bail before this Court on the ground of delay in
conclusion of trial of the case.
2.
After hearing learned counsel for the parties, learned
Deputy Prosecutor General and going through the available record
with their able assistance, it has been noticed that briefly, as per
Crime Report (F.I.R.) got recorded by Mirza Shabbir Haider
(complainant of the case/respondent No.2 in the petition),
petitioner issued cheque of Rs.30,00,000/- to the complainant
which was dishonoured on presentation by the bank. Petitioner
was arrested in this case on 30.07.2022 and sent to jail on the
same day where he is confined till now i.e. for more than period
of one year and 10 months and trial of the case has not been
concluded.
Case has been registered against the
petitioner under Section: 489-F PPC and
same is not punishable with death,
therefore, statutory period for grant of
bail on the ground of delay in conclusion
of trial of the case is continuous
detention exceeding one year as per 3rd
proviso to Section: 497(1) Cr.P.C. It is not disputed by the
learned Deputy Prosecutor General and learned counsel for the
complainant that petitioner is behind the bars for a continuous
period exceeding one year and ten months so now question does
arise that whether after his arrest, petitioner has caused any delay
during the period exceeding one year in conclusion of trial of the
case and in order to examine the same, attested copy of order
sheet annexed with this petition from Page No.32-40 has been
perused and perusal of the same reveals that challan report
Crl. Misc. No.16105-B/2024
3
under Section: 173 Cr.P.C. was received in the Court on
19.11.2022, charge was framed against the accused on 20.01.2023
and prosecution witnesses were summoned for 03.02.2023,
however, prosecution witnesses did not appear before the court till
17.10.2023 inspite of summoning them through warrants of their
arrest. Meaning thereby that after arrest of the petitioner on
30.07.2022, continuous period of detention of the petitioner
exceeding one year lapsed without conclusion of the trial and said
delay was not caused due to any act or omission of the petitioner
or any other person acting on his behalf. Learned Deputy
Prosecutor General and learned counsel for the complainant could
not refer any material to show that petitioner is previously
convicted offender for an offence punishable with death or
imprisonment for life or to opine at this stage that petitioner is a
hardened, desperate or dangerous criminal or is accused of an act
of terrorism punishable with death or imprisonment for life. It is
also relevant to mention here that after completion of statutory
period, if any adjournment has been obtained by the accused, it
does not disentitle him for grant of bail on ground of delay in
conclusion of trial rather he is entitled to be released on bail as a
matter of right and in this regard cases of “Muhammad Umer
Shahzad versus The State and others” (2023 SCMR 1450) and
“Nadeem Samson versus The State and others” (PLD 2022
SC 112) can be referred and relevant portions from latter case law
from its paragraphs No.8 to 10 are reproduced:-
“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 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-
Crl. Misc. No.16105-B/2024
4
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 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.
In the light of the above principles, we proceed to appreciate
the statutory ground of delay in conclusion of the trial
pleaded by the counsel for the petitioner, for grant of bail to
the petitioner.
9.
The petitioner was arrested and detained, in this case,
on 24.11.2017. The charge against the petitioner was framed
on 03.04.2018. Two prosecution witnesses were recorded on
27.02.2020. Till that date, a continuous period of exceeding
two years since the detention of the petitioner in the case had
lapsed without conclusion of the trial: therefore, a right to be
released on bail had prima facie accrued to the petitioner,
which could have been denied to the petition of the abovestated two exceptions: only this conclusion of the trial had her
person on demission of the petitioner or by any other person
acting on his behalf and (b) if the petitioner was found to be a
convicted offender for an offence punishable with death or
imprisonment for life, or was in the opinion of the court a
hardened, desperate or dangerous criminal, or was accused
Crl. Misc. No.16105-B/2024
5
of an act of terrorism punishable with death or imprisonment
for life.
10.
We have examined the record of the case and found
that there is no delay in conclusion of the trial till expiry of
the two year period of detention of the petitioner on
25.11.2019, which can be attributed to the petitioner or to any
person acting on his behalf reflecting a design or pattern to
consciously delay the conclusion of the trial. Any delay
attributable to the petitioner after the expiry of the said
period is not relevant for determining his right to be released
on bail on the statutory ground provided in the 3rd proviso to
Section 497(1), Cr.P.C. Nor he appears, in the facts and
circumstances of the case, to be a hardened, desperate or
dangerous criminal” who is likely to seriously injure and hurt
others without caring for the consequences of his violent act
and will thus pose a serious threat to the society if set free on
bail. The petitioner is, therefore, entitled to be released on
bail as a matter of right, not as a concession. The delay in
conclusion of the trial, noted by the High Court, attributable
to the counsel for the petitioner representing him before the
trial court, relates to the period after expiry of the continuous
two year period since detention of the petitioner in the case;
therefore, it could not have been considered by the High
Court for determining the right of the petitioner to be released
on bail under the 3rd proviso to section 497(1), Cr.P.C.”
(emphasis added)
Therefore, a right to be released on post-arrest bail has accrued
to the petitioner due to delay in conclusion of trial of the case
under 3rd proviso to Section: 497 (1) Cr.P.C.
So far as abscondence of the petitioner is concerned,
suffice it to say that if case for grant of post-arrest bail on the
ground of delay in conclusion of trial has been made out then
bail is granted as a “right” under 3rd proviso to Section: 497 (1)
Cr.P.C. and in this regard, guidance has been sought from the
supra case of “Nadeem Samson versus The State and others”
(PLD 2022 Supreme Court 112); relevant portion whereof is
hereby reproduced: -
“10. We have examined the record of the case and found
that there is no delay in conclusion of the trial till expiry of
the two year period of detention of the petitioner on
25.11.2019, which can be attributed to the petitioner or to
any person acting on his behalf reflecting a design or
pattern to consciously delay the conclusion of the trial. Any
delay attributable to the petitioner after the expiry of the
said period is not relevant for determining his right to be
released on bail on the statutory ground provided in the
3rd proviso to Section 497(1), Cr.P.C. Nor he appears, in
the facts and circumstances of the case, to be a hardened,
desperate or dangerous criminal” who is likely to seriously
injure and hurt others without caring for the consequences
of his violent act and will thus pose a serious threat to the
society if set free on bail. The petitioner is, therefore
Crl. Misc. No.16105-B/2024
6
entitled to be released on bail as a matter of right, not as a
concession.”
(emphasis added)
and case of “Shakeel Shah versus The State and others” (2022
SCMR 1) can also be advantageously referred on the subject
and relevant portion from the same is hereby reproduced: -
“9. 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.
(emphasis added)
It is by now well settled that when accused becomes
entitled for grant of bail as a matter of right, then he cannot be
declined such relief due to abscondance which is matter of
propriety and in this regard case of “RIAZ SHAH versus The
STATE” (2024 YLR 1369) can be referred. So now bail
cannot be declined to the petitioner due to abscondence.
As far as registration of some other cases against the
petitioner is concerned, it is relevant to mention here that none
of them is regarding any act of terrorism punishable with death
or imprisonment for life as apprised by learned Deputy
Prosecutor General after going through the record, therefore,
bar contained in 4th proviso of Section: 497(1) Cr.P.C. does not
apply to the case of petitioner; furthermore, since bail on
statutory ground of delay in conclusion of trial is to be granted
as a “right” hence if petitioner is not accused of act of terrorism
as mentioned in the 4th proviso of Section: 497(1) Cr.P.C. then
merely due to registration of some other cases against him
which are not regarding act of terrorism, bail on statutory
ground of delay in conclusion of trial cannot be withheld.
3. In view of what has been discussed above, instant
petition for grant of post-arrest bail on the statutory ground of
delay in conclusion of trial of the case is allowed and
Crl. Misc. No.16105-B/2024
7
Muhammad Rauf (petitioner) is admitted to post-arrest bail in
the case subject to his furnishing bail bonds in the sum of
Rs.500,000/- (Rupees five hundred thousand only) with two
sureties each in the like amount to the satisfaction of trial Court.
4.
It goes without saying that observations mentioned above
are just tentative in nature, strictly confined to the disposal of
instant bail petition and will have no bearing upon trial of the
case which will be concluded by the trial court within a period
of three months after receipt of attested copy of this order.
Needless to add that if petitioner or anybody else acting on his
behalf will create any hurdle in the way of conclusion of trial,
then complainant as well as the State would be at liberty to
move for recalling of this order.
(Farooq Haider)
Judge
Approved for Reporting.
(Farooq Haider)
Judge
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