Muhammad Qayum Versus State
Salah-ud-Din, J .--- Accused-respondent No. 2 namely Arshad Ali was admitted to post-arrest bail by the learned Additional Sessions Judge/Izafi Zila Qazi, Behrain, Swat vide his order dated 22.10.2024, on account of statutory delay in conclusion of his trial within the ambit of subsection (b) and Proviso-3 of section 497, Cr.P.C, and feeling aggrieved of the aforesaid bail granting order, the petitioner (complainant) has approached to this Court for the cancellation of his bail.
2. As per prosecution story, petitioner-complainant namely Muhammad Qayum initially reported the matter to local police on the strength of Mad Report No. 07 dated 20.9.2022 in respect of unnatural death of his sister Mst. Chaman Gul, wife of the present accused-respondent namely Arshad Ali. An inquiry was initiated under section 174(1), Cr.P.C whereby the complainant-party recorded their statements under section 164, Cr.P.C and charged the present accused-respondent Arshad Ali for the unnatural death of his wife i.e. sister of the present petitioner-complainant. Thereafter, FIR No. 385 dated 24.9.2022 was registered against the accused-respondent under sections 302, P.P.C at Police Station Madyan District Swat. Accused-respondent was admitted to post-arrest bail by the learned Additional Sessions Judge Behrain vide the impugned order dated 22.10.2024. Hence, the petitioner/complainant has approached to this Court by filing the instant bail cancellation petition.
3. Arguments of learned counsel for the petitioner were heard in considerable detail and the record perused with his able assistance.
4. Record reflects thataccused-respondent has made resort to learned trial Cour qua grant of bail on account of delay in conclusion of his trial by pressing into service proviso 3rd of section 497, Cr.P.C. Record would further show that the accused was arrested way back on 24.9.2022 and despite lapse of more than two years trial of the respondent could not be put to an end due to multiple reasons, as highlighted with minute detailed in the photo-copies of order sheets of learned trial Court, placed on file. This Court is in consonance with the findings of learned trial Court in terms that statutory period of detention shall be operative and commence from date of arrest of an accused person, rather than framing of charge. Respondent was neither a previous convict nor having antecedents of history-sheeter, besides, he was having a large family to look-after comprising of five children.
5. Learned counsel for the petitioner-complainant vehemently argued that on several dates of hearing learned counsel representing the accused was not in attendance but despite that these dates of hearing have been counted in the total tally of prosecution. It is common practice in criminal Courts in bail matters that whenever a defence counsel could not put his appearance due to variety of reasons, and on the other said PWs are not present then the Courts without looking into this aspect of absence of PWs held responsible the accused for adjournments and delay in conclusion of trial which is not justified at all, because in such eventuality, even presence of defence counsel would not make any difference as on those particular dates of hearing no progress could be made in the case due to non-availability of prosecution witnesses, therefore, such kind of delay in no way could be termed as contributory delay and the same in no way could be counted against an accused person. During the course of arguments, learned counsel for petitioner responded to a query of the Court that despite lapse of more than two years, till so far statements of four formal witnesses have been recorded, whereas majority of the prosecution's witnesses are yet to record their statements, which include doctor, Investigating Officer and complainant. Hon'ble Supreme Court of Pakistan in its judgment in case titled "Mehran v. Ubaid Ullah and others" reported as PLD 2024 S.C. 843 has held that:-
"Main reasons given by the High Court for the denial of bail to the petitioner (juvenile accused) on the statutory ground of delay in the conclusion of the trial were (i) that the petitioner committed a 'heinous offence'; (ii) that the delay in the conclusion of the trial was attributable to the petitioner, as he had moved an application for the determination of his age under Section 8 of the Juvenile Justice System Act, 2018 ("2018 Act"), which took time; and (iii) the frequent absence of the co-accused during the trial also contributed to the delay. High Court erred in law by attributing the delay in concluding the trial to the petitioner, who had filed an application for determination of his age under Section 8 of the 2018 Act, which took time. Initial duty to determine the age of an accused who appeared or claimed to be a juvenile laid with the police. When the police fails in this duty, it passes on to the court. Therefore, the time spent by the court in making this determination constitutes an act of the court, which cannot be construed as delay caused by the petitioner in the trial, thereby depriving him of his right to bail on the statutory ground of delay.
So far as the delay caused by the frequent absence of the co-accused during trial was concerned, the same could not be attributed to the petitioner as one was responsible for his own acts or omissions, not of others. Petitioner was arrested in the present case on 23 February 2023 and had been detained continuously for more than six months since then, with his trial not yet concluded. There was no evidence on record indicating that the delay in concluding the trial was caused by any act or omission of the petitioner. Therefore, the prerequisites of Section 6(5) of the 2018 Act were fulfilled, which entitled the petitioner to the grant of post-arrest bail as a matter of right on the statutory ground of delay in the conclusion of the trial. Petition was converted into an appeal and the same was allowed, the impugned judgment was set aside, and the petitioner was admitted to bail.
Further reliance may also be placed on the case of apex Court titled "Muhammad Usman v. The State and another" reported as 2024 SCMR 28 , whereby it has been held that: -
Quantum of delay attributable to the accused, calculation whereof, while calculating the quantum of delay attributable to an accused, the court is required to consider whether or not the progress and conclusion of the trial was in any manner delayed by the act and omission on the part of the accused. While ascertaining the delay, the cumulative effect in disposal of the case has to be considered and its assessment cannot be determined on the basis of mathematical calculations by excluding those dates for which adjournments had been sought by the accused or the latter's counsel. Main factor for consideration is the attendance of the witnesses and whether, despite the matter having become ripe for the recording of evidence, whether the delay was caused by the defence. Recording of the statement of a last witness would also not defeat the right recognized under the third proviso and it would be unreasonable to conclude that the trial has been completed.
6. Needless to mention, Hon'ble apex Court had earlier extended the scope and applicability of the Third and Fourth provisos to section 497, Cr.P.C in case titled "Shakeel Shah v. The State and others" reported as 2022 SCMR 1 , in case titled "Nadeem Samson v. The State and others" reported as PLD 2022 S.C. 112 and in the case of "Ali Asghar v. The State and others" reported as 2022 SCMR 970.
7. Even otherwise, after insertion of Article 10-A in the Constitution of Pakistan, the due process of law including speedy and fair trial has been recognized as a fundamental right of every accused person. The policy of criminal law is to bring an accused person to justice as speedily as possible and if he is found guilty, he may be punished and if he is found innocent he may be acquitted. Since the delay in conclusion of trial was not attributable to the accused-respondent, therefore, he was rightly found entitled to the concession of bail on statutory ground as he had remained incarcerated in jail for continuous period of more than two years.
8. In view of the above and leaving aside other merits of the case let it may prejudice valuable rights of either party during the course of ensuing trial, learned trial Court has rightly extended the concession of post arrest bail to the accused-respondent through the impugned bail granting order, which is neither perverse nor arbitrary nor whimsical.
9. By now it is settled law that once bail is granted by a Court of competent jurisdiction, then very strong and exceptional grounds would be required to recall and cancel the same. In the case of "Sami Ullah and another v. Laiq Zada and another" reported as 2020 SCMR 1115 , the Hon'ble apex Court has held that superior courts of the country from time to time have enunciated certain principles governing cancellation of bail and those are in field with unanimous concurrence since considerable time. Those are enumerated as under: - i) If the bail granting order in patently illegal, erroneous, factually incorrect and has resulted into miscarriage of justice. ii) That the accused has misused the concession of bail in any manner. iii) That accused has tried to hamper prosecution evidence by persuading/ pressurizing prosecution witnesses. iv) That there is likelihood of absconsion of the accused beyond the jurisdiction of court. v) That the accused has attempted to interfere with the smooth course of investigation. vi) That accused misused his liberty while indulging into similar offence. vii) That some fresh facts and material has been collected during the course of investigation with tends to establish guilt of the accused.
10. This being the legal position, the petition in hand stands dismissed, in limine .
MQ/53/P Petition dismissed.