Dilawar vs The State
This matter concerns a post-arrest bail application filed by the accused, Dilawar, in connection with FIR No. 35 of 2021 registered under sections 324 and 397 of the Pakistan Penal Code 1860. The core legal question was whether the accused was entitled to bail on the statutory ground of prolonged incarceration, given that the trial had not concluded despite the accused being in custody for over one year and nine months. The court held that the accused was entitled to the grant of bail. The ratio of the decision rests on the fact that the delay in the trial was not attributable to the accused, and the statutory period for mandatory consideration of bail under the Code of Criminal Procedure 1898 had been exceeded. The court reaffirmed the principle that the liberty of a person is a precious right that cannot be curtailed without exceptional grounds, and that under the third proviso to section 497(1) of the Code of Criminal Procedure 1898, an accused in a non-bailable, non-capital offence is entitled to bail if detained for over a year without trial delay caused by them.
- Does the third proviso to section 497(1) of the Code of Criminal Procedure 1898 mandate the release of an accused on bail if the trial has not concluded within one year?
- Is an accused entitled to bail if the delay in the trial is not attributable to their own acts or omissions?
- Can an accused be granted bail on the ground of statutory delay even if a previous bail application was dismissed on merits?
- Section 324, Pakistan Penal Code 1860
- Section 397, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
- Section 497(1), Code of Criminal Procedure 1898
- Section 497(5), Code of Criminal Procedure 1898
ROZI KHAN BARRECH, J. Through the instant application, the applicant/accused Dilawar, son of Muhammad Hassan, seeks post arrest bail under section 497 Cr.P.C. in case FIR No. 35 of 2021 registered with PS Dalbandin District Chaghi under sections 324 and 397, P.P.C. Earlier, the applicant/accused moved an application for post-arrest bail in the court of learned Additional Sessions Judge, Dalbandin ("trial court"), which was dismissed vide order dated 13.04.2023.
2. Briefly stated facts of the case are that a case vide FIR No. 35 of 2021 was registered on the complaint of one Nihal Khan, son of Khamisa Khan, alleging therein that on 22.08.2021, he, along with his son Salman Khan were present in his house and at about 6:30 pm, he went towards bazzar, and his son was present in the house. In the meantime, the accused/applicant along with four unknown persons, came to his house, and on the resistance they fired on his son, due to which his son sustained bullet injuries and became unconscious. Hence, the crime report.
3. After registration of the FIR, the accused/applicant was arrested who applied for post-arrest bail before the trial court, which was dismissed vide order dated 23.09.2021, and the said order was challenged by the accused/application before this court by filing Criminal Bail Application No. 629 of 2021, which was dismissed vide order dated 11.10.2021. Subsequently, the accused/applicant filed another Bail Application 06 of 2021 before the trial court, which too was dismissed vide order dated 10.02.2022. The accused/applicant moved another application before the trial court for a grant of bail, and the same was accepted vide order dated 31.03.2022. The complainant being aggrieved from the order dated 31.03.2022, filed an application under section 497 (5) Cr.P.C.for cancellation of the bail of the applicant/accused before this court, and the same was accepted vide order dated 31.08.2022. The accused/application moved another application before the trial court for post- arrest bail, and the same was dismissed vide order dated 13.04.2023. whereafter the instant application was filed.
4. I have heard the arguments advanced by learned counsel for the parties and also perused the available record.
5. It may be observed that this court vide order dated 31.08.2022 cancelled the bail of the accused/applicant on merit, which was granted to him by the trial court vide order dated 31.03.2022. The accused/applicant moved another application under section 497 Cr.P.C before the trial court on the fresh ground that despite the lapse of two years, the conclusion of the trial is not in sight in the near future. The said application was dismissed by the trial court. Now the accused/applicant filed an application before this court on the ground that the statutory period has lapsed and the accused/applicant has been behind the bars for the last two years.
6. After perusal of the record, it revealed that the accused/applicant was arrested in the instant case on 08.09.2021, and from that date, accused/applicant has been behind the bars; that the accused/applicant was granted bail by the trial court and the same was cancelled by this court vide order dated 31.08.2022 and till date the prosecution evidence has not been completed, and now the case is fixed for the prosecution evidence. The accused/ applicant has been behind the bars since 08.09.2021 and despite a lapse of one year and nine months, the conclusion of the trial is not in sight in the near future.
7. Learned counsel for the accused/applicant informed this court that the delay is not attributable to the accused/applicant. On my specific query, learned State Counsel admitted the stance of the accused/applicant. A plain language of proviso 3 to subsection (1) of section 497, Cr.P.C. clearly reveals that in cases of non-bailable offences, which are not punishable with death where the accused has been detained for a continuous period exceeding one year, and it is found that the delay in the trial has not been occasioned due to any act or omission of the accused, the Court shall direct that the accused be released on bail. The Supreme Court has time and again held that the liberty of a person is a precious right which cannot be taken away without exceptional foundations.
8. In view of the above discussion, the accused/application is entitled for the grant of bail on the ground of the statutory period. The accused/applicant is behind the bars from one year and nine months, and the maximum punishment for an offence under section 397 Cr.P.C. is seven years.
Consequently, the application is accepted, and the applicant/accused Dilawar, son of Haji Muhammad Hassan, is granted bail in case FIR No. 35 of 2021 PS Dalbandin District Chaghi subject to furnishing surety to the tune of Rs. 5,00,000/- with PR bond of like amount to the satisfaction of Additional Registrar of this court/trial court.