YASIN Versus State
The petitioner sought post-arrest bail in a murder case registered under sections 302, 148, and 149 of the Pakistan Penal Code 1860, on the statutory ground of delayed trial under the fifth proviso to section 497 of the Code of Criminal Procedure 1898, as amended by Act No. VIII of 2011. The core legal question was whether the petitioner was entitled to statutory bail given the duration of his incarceration and whether the delays in the trial could be attributed to him. The Lahore High Court held that since the net period of detention exceeded two years after excluding delays attributable to the petitioner, and given that the petitioner was not a hardened, desperate, or previous convict, he was entitled to the statutory concession of bail. The court laid down the principle that seeking legal remedies such as a juvenile trial application does not constitute a contumacious act to deny statutory bail, and minor delays not directly caused by the accused cannot preclude the right to statutory bail under the Code of Criminal Procedure 1898.
- Whether an accused is entitled to post-arrest bail on statutory grounds when the trial has not concluded within the stipulated period?
- Does the filing of an application for trial under the Juvenile Justice System Ordinance amount to a contumacious act causing delay for the purposes of statutory bail?
- Whether the period of adjournment sought by a co-accused can be attributed to the petitioner to defeat a statutory bail petition?
- Section 302, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
- Juvenile Justice System Ordinance 2000
ORDER
RAUF AHMAD SHEIKH, J.--- The petitioner seeks post-arrest bail in case F.I.R. No.193 of 2009 dated 16-6-2009 Police Station Saddar Renala Khurd., District Okara, under sections 302/148/149, P.P.C.
2. The petitioner along with others has been charged under sections 302/ 148/149, P.P.C. for causing Qatl-e-Amd of Ali Ahmad Sabir on 16-6-2009 at about 2-00 p.m. in the area of Qasba Islampura Police Station Saddar Renala Khurd.
3. At the outset learned counsel for the petitioner has contended that the petitioner seeks concession of bail on statutory ground alone as he has been behind the bars for a period of two years and one month and the trial has not reached its logical end in spite of the fact that the petitioner or anyone acting on his behalf is not responsible for delay. The learned counsel for the petitioner has urged that the petitioner is neither a dangerous nor hardened criminal so cannot be kept in the Jail for an indefinite period It is further urged that at the time of the dismissal of the first bail petition on merits and withdrawal of the second petition, the statutory ground was not available and did not come under consideration.
4. Learned D.P.-G. and learned counsel for the complainant have vehemently opposed the petition. It is urged that the petitioner had sought an adjournment on 18-4-2011 although the witnesses were present but could not be recorded due to non-availability of his counsel and then submitted an application that he be tried under the Juvenile Justice System Ordinance, 2000 so considerable time was consumed in disposal of the said petition. It is also urged that the co-accused of the petitioner had also sought adjournment so the prosecution or complainant should not suffer for the delay in disposal of the case. It is also urged that the previous petition was dismissed on merits so the instant petition is not maintainable.
5. No doubt the first bail petition was dismissed by this Court and the second petition was withdrawn but the entitlement to release on bail due to the amendment made in 5th Proviso of section 497, Cr.P.C. through Act No.VIII of 2011 did not come under consideration. The petitioner was arrested on 10-7-2009 and is behind the bars for the last two years and two months. No doubt an adjournment was sought on 18-4-2011 due to non-availability of his counsel and the case was adjourned to 18-5-2011 so this delay of one month occurred due to request of the petitioner. The co-accused of the petitioner, namely Sadi Ahmad sought an adjournment due to demise of his cousin and this adjournment cannot be attributed to the petitioner. On 3-8-2011 both the learned counsel for the complainant and petitioner were not available and an adjournment was granted so this cannot be attributed to the petitioner alone. The submission of the application for trial under the Juvenile Justice System Ordinance, 2000, cannot be deemed to be contumacious act and the delay, which took place in disposal of the said petition cannot be deemed to be a fault on part of the petitioner because every one has right to seek remedy from the Court in accordance with law. If the period of one month is excluded from the total period of detention in the Jail as under trial prisoner, the net period is more than two years. Till today no substantial progress has been made towards conclusion of the trial. The petitioner is not a previous convict for commission of an offence punishable with death or imprisonment for life. He is neither a hardened nor desperate criminal. The contention of the learned counsel for the complainant and learned D.P.-G that he is the principal accused of the case is not sufficient to conclude that he falls in the abovementioned category.
5. For the reasons supra, the petitioner is entitled to bail under 5th Proviso of section 497, Cr.P.C. as amended through Act No.VIII of 2011 so the bail petition moved by him is accordingly accepted. He be released on bail subject to his furnishing bail bonds in the sum of Rs.2,50,000 (Rupees two lacs and fifty thousands only) with two sureties each in the like amount to the satisfaction of the learned trial Court.
H.B.T./Y-12/L Bail granted.
Cited by 2 cases
- IRFAN alias SHANI vs STATE and another PLJ 2013 Cr.C. (Lahore) 754
- DILAWAR vs THE STATE and another 2012 PLD Peshawar 95