JAVAID KAMAL vs STATE & another
This is a third petition for post-arrest bail filed by the petitioner, who is charged under Section 489-F of the Pakistan Penal Code 1860. The petitioner's previous bail application was dismissed on merits with a direction to the trial court to conclude the trial within one month. The core legal question is whether the petitioner is entitled to bail due to the inordinate delay in the conclusion of the trial, specifically where the prosecution has filed an application under Section 540 of the Code of Criminal Procedure 1898 to summon additional witnesses at a late stage, thereby prolonging incarceration beyond a reasonable period relative to the maximum sentence. The Court held that the liberty of an individual is a precious right that cannot be curtailed indefinitely. Finding that the trial was not concluded within the stipulated timeframe and that the prosecution's recent procedural actions were dilatory, the Court granted post-arrest bail. The key principle established is that prolonged incarceration, where the trial is not concluded within a reasonable time due to prosecution-led delays, constitutes sufficient grounds for the grant of bail, even if a previous bail application was dismissed on merits.
- Does the failure of the trial court to conclude a trial within a previously ordered timeframe justify the grant of post-arrest bail?
- Can the filing of an application under Section 540 of the Code of Criminal Procedure 1898 by the prosecution be considered a ground for bail if it causes undue delay in the trial?
- Is prolonged incarceration beyond a significant portion of the maximum sentence a valid ground for granting bail after a previous dismissal on merits?
- Section 489-F, Pakistan Penal Code 1860
- Section 540, Code of Criminal Procedure 1898
ORDER
This is 3rd petition on the subject on behalf of the petitioner. The 1st one bearing Crl. Misc. No, 2954- B/2012 was dismissed as withdrawn in terms of order dated 03.04.2012, whereas 2nd petition bearing Crl. Misc. No, 2487-B/2013 was dismissed on merits by this Court in terms of order dated 17.05.2013 with direction to the learned trial Court to conclude trial of the instant case within one month.
2. Through the instant petition, the petitioner has sought for his post-arrest bail in case FIR No, 58, dated 10.05.2010, offence under Section 489-F, PPC, registered at Police Station, Sarwar Road, Lahore.
3. Facts of the case already stand mentioned in Crl. Misc. No, 2487-B/2013, whereby earlier petition of the petitioner was dismissed in terms of order dated 17.05.2013; therefore, there is no need to repeat the same here.
4. Learned counsel for the petitioner submits that the petitioner is innocent and has falsely been roped in the instant case, by the complainant against the actual facts and circumstances with ulterior motives. It is argued that though the bail of the petitioner has already been dismissed on merits by this Court, however direction issued by this Court qua conclusion of trial of the instant case within one month has not been complied with by the horned trial Court, due to non cooperation of the prosecution. It is argued that the prosecution has filed application under Section 540, Cr.P.C, seeking summoning of the Bank Officer as a PW at a belated stage only to prolong the trial with mala fides. Adds that only three years punishment is provided under the statue for the offence alleged against the petitioner whereas the petitioner is behind the bars for the last more than twenty four months. It is contended that there is no chance of early conclusion of the trial of the instant case. In such circumstances, it is contended that the petitioner is entitled to the relief prayed for.
5. Learned Law Officer has opposed this petition with vehemence, however, frankly concedes that the petitioner is behind the bars for the last about two years.
6. Arguments advanced from both sides have been heard. I have also gone through the record.
7. The earlier petition of the petitioner bearing Crl. Misc. No, 2487-B/2013 was dismissed on merits by this Court in terms of order dated 17.05.2013 by observing that bulk of the prosecution evidence has been recorded, with direction to the learned trial Court in the following terms: "However, the learned trial Court is directed to expedite the trial proceedings and conclude the same within one month from the receipt of this order".
Despite elapse of more than four months of the passing of the aforesaid order, the trial of the instant case could not be concluded by the learned trial Court; rather the complainant has preferred an application under Section 540, Cr.P.C. seeking summoning of the Bank Officer, who singed the dishonour slip, as a PW on 04.09.2013, i,e, at a belated stage, which certainly is an attempt at the part of the prosecution to prolong the trial of the instant case. The maximum sentence of three years is provided under the statue for the offence alleged against the petitioner, whereas he is continuously facing incarceration for the last about twenty four months. The petitioner is a retired army personnel/retired colonel. Both the parties had dispute over payment as they were having joint business. Application filed under Section 540, Cr.P.C. filed by the prosecution has to be contested by the defence. Such circumstances reflect that early conclusion of trial of the instant case is not in sight. The liberty of a person is a precious right, which cannot be curtailed for an indefinite period.
8. In sequel to what has been discussed above, the instant petition is accepted as a consequence whereof, the petitioner is admitted to bail after arrest subject to his furnishing bail bonds in the sum, of Rs,1,00,000/- with one surety in the like amount to the satisfaction of learned trial Court.