FAISAL SHAHZAD vs STATE
This matter concerns twenty-four consolidated bail applications filed by the petitioner, Faisal Shahzad, who has been incarcerated for two years in connection with customs-related offences. The core legal question addressed by the Court was whether the petitioner was entitled to post-arrest bail on the grounds of inordinate delay in the trial, given that no prosecution witnesses had been examined despite the challan being submitted over a year prior. The Court noted that the Special Appellate Court, which would typically hear such matters, was non-functional due to the absence of a presiding judge following the Supreme Court's judgment regarding PCO judges. Consequently, the High Court exercised its jurisdiction to prevent the accused from remaining in judicial custody indefinitely without trial. The Court held that the petitioner was entitled to bail because the delay in the conclusion of the trial was not attributable to him. The key principle laid down is that an accused cannot be kept in judicial lock-up for an indefinite period when the trial process is stalled due to administrative or judicial vacancies, thereby violating the right to a speedy trial.
- Whether an accused is entitled to bail when the trial has been delayed for an extended period without fault of the accused?
- Can the High Court grant bail when the Special Appellate Court is non-functional due to the absence of a presiding judge?
- Does the failure to examine any prosecution witnesses for over a year constitute sufficient grounds for the grant of bail?
- Section 497, Code of Criminal Procedure 1898
- Section 15, Customs Act 1969
- Section 46(5), Prevention of Smuggling Act 1977
ORDER
This order will dispose of Crl. Misc. No, 9537-B-2009,9544-B- 2009, 9546-B-2009, 9547-B-2009, 9548-B-2009, 9550-B-2009, 9538-B-2009, 9541-B-2009, 9549-B-2009, 9551-B-2009, 9543-B-2009, 9535-B-2009, 9536-B-2009, 9539-B-2009, 9540-B-2009, 9542-B-2009, 9545-B-2009, 9681-B-2009, 9682-B-2009, 9983-B-2009, 9684-B-2009, 9685-B-2009, 9686-B-2009, and 9687-B-2009, filed by Faisal Shahzad petitioner.
2. Learned counsel for the petitioner submits that petitioner is not beneficiary in this case; that he was an employee of one Naeem Qureshi; that neither petitioner is importer nor he was clearing agent or employee of custom authority; that he is behind the bars for the last two years; that challan has been submitted in the Court about one year ago but not a singly witness has been recorded so far; that speedy trial is right of accused and that case of petitioner is of further inquiry falling under sub-clause (2) of Section 497 Cr.P.0 and he is entitled to bail.
3. Learned Legal Advisor Custom submits that petitioner is named in the FIR; that recovery was effected from him; that he was working as an agent on behalf of one Naeem Qureshi; that two bail applications of Naeem Qureshi are also fixed before my learned brother Asif Saeed Khan Khosa, J. today; that he used to collect the money from the dealers and sent the same to Naeem Qureshi through banks; that maximum sentence in this offence which has been levelled against the petitioner is ten years and not less than five years that interim challan was submitted on 24.7.2008 and admits that not a singly witness has been recorded so far.
4. Before opening his arguments learned Legal Advisor submits that against the order of Special Judge Custom a special appellate Court is constituted by the order of Federal Government on the advice of Chief Justice High Court. He has referred sub-clause B of Section 15 of Custom Act 1969.
5. After hearing learned counsel for the parties I am state here that according to provision of Prevention of Smuggling Act, 1977 sub-clause 5 of Section 46 reads as follow:--
(5) when the Judge of Special Appellate Court is, for any reason, temporarily unable to perform his duties, he may inform the Chief Justice of the High Court of which he is a Judge and the Chief Justice shall nominate another Judge to perform the functions of Special Appellate Court so long as such Judge is unable to perform his duties."
6. On the advice of Chief Justice of this Court earlier Syed Shabbar Raza Rizvi, J. was appointed as Special Appellant Court but because of judgment of Hon'ble Supreme Court of Pakistan dated 31.7.2009, he has become PCO Judge, although Hon'ble Supreme Court had not restrained from working. According to said judgment Hasnat Ahmad Khan, J. till today has not jointed the Court, so I have no other option but to dispose of 24 bail applications because accused person cannot be kept in judicial lock up for indefinite period. It has not been denied by learned Legal Advisor of Custom that the petitioner is behind the bars for the last two years. The challan has been submitted before the Court one year ago and till today not a single witness has been examined.
There is no fault of the petitioner in conclusion of the trial. Maximum sentence which can be awarded in the instant offence is 10 years, so on the ground of delay I accept all the 24 bail applications filed by the petitioner. He shall be released if he furnishes bail bonds in the sum of Rs, 100,000/- with one surety in the like amount in each case to the satisfaction of Deputy Registrar (J) of this Court.