LAIK KHAN and anothers vs THE STATE and another
This matter concerns a fifth post-arrest bail petition filed by the petitioners, Laik Khan and Mubashar Khan, who were charged under Section 302 and Section 34 of the Pakistan Penal Code 1860. The core legal question was whether the petitioners were entitled to bail due to the prolonged incarceration and the failure of the trial court to conclude proceedings within the timeframe previously directed by the High Court, despite the delay not being attributable to the petitioners. The Court held that the petitioners were entitled to bail, noting that their continued incarceration without fault, combined with the prosecution's failure to secure the attendance of witnesses, violated the right to an expeditious trial. Furthermore, the Court recognized the petitioners' statutory right to bail under the proviso to Section 497, Code of Criminal Procedure 1898 (referenced via Section 426(1A) context). The key principle laid down is that where an accused is not responsible for trial delays and has suffered prolonged incarceration, the court must grant bail to protect the fundamental right to an expeditious trial, especially when previous judicial directions for speedy disposal have not been met.
- Does the failure of the prosecution to produce witnesses within a court-mandated timeframe entitle an accused to post-arrest bail?
- Is an accused entitled to bail if the delay in the conclusion of the trial is not attributable to them?
- Can a court grant bail based on the statutory right arising from prolonged incarceration despite previous bail petitions being dismissed on merits?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 426(1A), Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
ORDER
' ALTAF IBRAHIM QURESHI, J.---Through the instant petition, the petitioners-Laik Khan and Mubashar Khan, seek their post-arrest bail in a case arising out of F.I.R. No,109, dated 31-1-2009, registered with Police Station Islampura, Lahore, under sections 302, 34, P.P.C.
2. This is the fifth petition. Detail of first two petitions is as under:--
(i) Criminal Miscellaneous No,15712-B-2009 was dismissed on merits vide order dated 24-12-2009;
(ii) Criminal Miscellaneous No,11389-B-2010 was dismissed on merits vide order dated 20-10-2010; So far as the third petition bearing Criminal Miscellaneous No,653-B/2011, the same was disposed of with the following observation:-- "This is second petition for bail after arrest. Earlier Criminal Miscellaneous No,15712/B/2009 was dismissed on merits vide order dated 24-12-2009. The fresh ground being urged in support of this petition is that the trial has not been concluded so far. When asked whether the petitioner has approached the learned trial court on the basis of this fresh ground, reply was in the negative.
Therefore, this petition is disposed of with the observation that the petitioner may, if he so chooses, file a fresh bail petition before the learned trial court on the basis of this fresh ground."
' Criminal Miscellaneous No,3073-B/2011 being the fourth one was also disposed of by this Court vide order dated 31-3-2011, in view of the report of the learned trial Court dated 21-3-2011, and it was directed as under:-- "This petition is, therefore, disposed of as having not been pressed with the direction to the learned trial court to conclude the trial of this case within a period of three months from the receipt of this order. If the trial is not concluded within the stipulated period and the delay is not attributable to the petitioner, the petitioner shall be at liberty to file fresh petition for bail before the appropriate forum".
3. Learned counsel for the petitioner, at the very outset, on the strength of aforesaid order dated 21- 3-2011, has drawn the attention of this Court towards the order sheet of the learned trial Court to show that the delay in conclusion of trial despite direction issued by this Court, on none of the date, is attributable to the present petitioner and the same is being occurred due to the non- cooperation and non-availability of the prosecution witnesses. I have gone through the order sheet. The recent order in series, passed by the learned trial Court on 12-7-2011, reads:- "No P.W. In attendance. An application for adjournment on behalf of the P.W. Shahid Sharif has made, contending that he is not feeling well today, therefore, unable to depose in the court. The process issued against the remaining P.Ws. Has been received with the report that the P.Ws.
Namely Kashif Sharif and Saqib Ali and Sikandar Ali are also involved in case F.I.R. No,981 of 2010, under section 302/34, P.P.C. And case F.I.R. No,850 of 2010, under section 302/34,, P.P.C, registered at Police Station Islampura, Lahore and they have absconded. Let Sabir Hussain 3612/C, Process server be summoned for recording his statement. Let the remaining P.Ws. Be also summoned for 21-7-2011 with direction to S.H.O. Concerned to ensure the service and attendance of the remaining P.Ws. In the court on the date fixed".
4. I have also noticed that petitioner No,1-Laik Khan was arrested on 16-3-2009 whereas petitioner, No,2 Mubashar Khan was arrested on 10-3-2009. Since their arrest, both the petitioners are continuously incarcerated in Jail. This being so, they have also earned a statutory right, introduced vide proviso (c) of section 426(1A), Cr.P.C.
5. The cases in which the accused are in custody, are to be given preference. Expeditious trial is a right of an accused. From the perusal of the order sheet of the learned trial Court, the petitioners are not responsible for causing delay in the trial of the case. When a specific direction was issued by this Court, same must be acted upon by the learned trial Court for faithful compliance of said direction. Therefore, non-compliance of the direction issued by this Court coupled with statutory ground, are considered sufficient for enlargement of the petitioners on bail. To keep the petitioners in Jail for no fault on their part, when they are no more required for any purpose, would be of no avail to the prosecution.
6. On a court question, learned Deputy Prosecutor-General, is unable to show any previous record to demonstrate that the present petitioners are hardened or desperate criminals.
7. For the foregoing reasons, present petition is accepted and the petitioners are admitted to bail subject to their furnishing bail bonds in the sum of Rs,2,00,000 each with one surety each in the like amount to the satisfaction of the learned trial Court.