Shehbaz alias Kodu vs State and another
This matter concerns three post-arrest bail petitions filed by Shehbaz alias Kodu, Mohsin Ayyaz alias Faisal, and Shumaila Bibi, who are accused in a case involving dacoity and dishonestly receiving stolen property under Sections 395 and 412 of the Pakistan Penal Code 1860. The core legal question was whether the petitioners were entitled to bail on the statutory ground of delay in the conclusion of their trial. Upon reviewing the trial court's report and record, the High Court observed that the delay was primarily attributable to the COVID-19 pandemic and the prosecution's failure to produce witnesses, rather than any fault of the accused. The court held that the petitioners had satisfied the statutory requirements for bail, as they had been incarcerated for over one year without the trial reaching a conclusion due to no fault of their own. The court reaffirmed the principle that a statutory right to bail cannot be denied through discretionary power when the accused is not responsible for the delay in the trial proceedings.
- Can bail be granted on statutory grounds when the delay in trial is caused by the prosecution's failure to produce witnesses?
- Is a statutory right to bail subject to the court's discretionary power when the accused is not responsible for the trial delay?
- Does the COVID-19 pandemic constitute a valid reason to deny bail when the statutory period of incarceration has been exceeded?
- Section 395, Pakistan Penal Code 1860
- Section 412, Pakistan Penal Code 1860
- Section 173, Code of Criminal Procedure 1898
- Section 249-A, Code of Criminal Procedure 1898
ORDER
Through this single order , I would like to dispose of three bail petitions. In the afore-titled petitions i.e. Crl. Misc.
2171-B of 2020, Shehbaz alias Kodu, Cr1. Misc. No. 3151-B of 2020, Moshin Ayvaz alias Faisal and in Cr1. Misc.
No. 3437-B of 2020 Shumaila Bibi, the petitioners, seek post-arrest bail in case FIR No. 488/2018, dated 18.12.2018, offences under sections 395, 412, PPC registered with the Police Station Purani Kotwali, District Multan, at the instance of Muhammad Ahmad complainant.
2.The allegation against the petitioners as per contents of FIR is that on 17.12.2018, at about 9.30 p.m. the petitioners alongwith their co-accused all armed with different weapons entered into the complainant's house and committed dacoity on gun point and took cash amount of Rs. 17,00,000/-, prize bonds valuing Rs. 18,00,000/-, a cheque, gold ornaments weighing 60 tolas, etc.
3. I have heard the arguments advanced by learned counsel for the petitioners, learned DPG for the State and perused the record.
4. It has straightaway been observed that this is first post-arrest bail on behalf of the petitioners on statutory ground of delay in conclusion of the trial. As the bails have been sought on statutory delay , therefore, a report was called from the learned trial Court regarding delay in conclusion of the trial and relevant portion of report dated 22.6.2020 is reproduced as under: "I have the honour to submit vide your Endst Letter No. 11571/Crl. Dated 15.6.2020 that report u/S. 173 Cr.P.C. of above mentioned case was received on 24.05.2019. On 09.01.2020, the said case was transferred by the order of worthy District & Sessions Judge, Multan, and was entrusted to the undersigned. Charge was framed oh 15.06.2019. Due to non-production of witnesses by the complainant prosecution, evidence could not be recorded for last 031/2 months, neither accused persons are produced from jail nor evidence is recorded due to Covid-19.
Now the case is fixed for 23.06.2020 for prosecution evidence."
5. Learned counsel for the petitioners has also placed on record copy of order 01.10.2020 passed by leaned trial Court, which reflects that neither the complainant nor his evidence was present before the learned trial Court and last opportunity was granted to the complainant for production of witnesses and notice under Section 249-A Cr.P.C. was also issued to the complainant. The above mentioned report furnished by the trial Court as well as interim order sheet clearly reveals that delay in conclusion of the trial occurred due to Covid-19 and non-production of witnesses by the prosecution. In this way it cannot be said that the petitioners are exclusively responsible for delay in inclusion of the trial and even no other person acting on his behalf is contributory towards delay in conclusion of the trial, In these circumstances, the petitioners have made out a case for bail on statutory ground. It is settled principle of law that statutory right cannot be denied under discretionary power when the petitioners are not responsible for the cause of delay . The petitioner Shahbaz alias Kodu is behind the bars since 04.1.2019, while, petitioner Mohsin Ayyaz alias Faisal is in judicial lockup since 01.2.2019 and petitioner Shumaila Bibi was sent to judicial lockup on 05.1.2019 and statutory period of the offences with which the petitioners are charged, is one year and the petitioners have already earned the statutory right as they are behind the bars since last more than one year, without any delay in trial on their part. The petitioners are not declared hardened, desperate or dangerous criminal. Despite the lapse of more than about one year, the trial is still at initial stage and no witnesses have been recorded. Reliance is placed on the case of Muhammad Afzal Butt alias Aphi vs. The State and others (2015 SCMR 1696 ). No useful purpose would be served by keeping the petitioner; behind the bars.
7. Consequently , these petitions are allow ed and petitioners Shahbaz alias Kodu, Mohsin Ayyaz alias Faisal and Shumaila Bibi are allowed post-arrest bail subject to their furnishing bail bond s in the sum of Rs. 2,00,000/- (Rupees two lac) each with two sureties each in the like amount to the satisfaction of the learned trial Court.