Syed Muhammad Kashan Haider Versus State

Raja Saeed Akram Khan, C.J .--- The appellants and other accused persons were booked in FIR No. 414/21 dated 14.11.2021, registered under in offences under sections 302/341, 34 APC and 15(2) Arms Act. In the FIR, it was alleged that all the accused persons nominated in the FIR, through a firearms, injured "Nayyar Abbas Jafari", the brother of the complainant in order to kill him, who remained in strive for life in a hospital but succumbed to the injuries, on hence, accused persons nominated in the FIR be proceeded in accordance with law. The police conducted an investigation and submitted the challan on 22.03.2022. It is alleged that the trial remained delayed due to a parallel private complaint filed by respondent No.2 on 08.04.2022 before the Additional District Court of Criminal Jurisdiction, Muzaffarabad, under the same offences. The trial court stayed the proceedings of the challani case on 28.09.2022. The private complaint was eventually withdrawn by the complainant on 02.03.2024, and the trial of the challani case resumed thereafter. Due to excessive delay in the trial, the appellants moved bail application before the trial court on statutory grounds under Section 497 Cr.P.C., citing prolonged incarceration exceeding two years without framing of charges. However, the trial court dismissed the bail application on 30.03.2024. Feeling aggrieved, the appellants filed a revision petition before the Shariat Appellate Bench of the High Court (in short "High Court"), which has been dismissed through the impugned judgment, hence, this appeal.

2. The learned counsel for the appellants argued that the appellants have been falsely implicated in the case due to mala fide intentions and ulterior motives of respondent No.2, who, with the connivance of the police, manipulated the investigation and charge-sheeted the appellants under fabricated allegations. He contended that the prosecution deliberately delayed the trial by filing a private complaint, which was later withdrawn, thereby causing an unjustified and extraordinary delay of over two years, during which the appellants remained in custody without the conclusion of the trial. He further argued that the delay in framing charges and the prolonged detention of the appellants, despite their non-involvement in any act contributing to the delay, entitles them to bail under section 497, Cr.P.C on statutory grounds. The learned counsel emphasized that both the trial court and the High Court failed to appreciate the legal and factual aspects of the case, overlooked the prosecution's deliberate attempt to withhold and manipulate proceedings, and dismissed the bail application without properly adjudging the appellants' right to liberty in light of the prolonged and unjustified detention. He submitted that the appellants are entitled to the concession of bail, as their continued incarceration violates their fundamental rights, and the prosecution has failed to establish any lawful justification for their prolonged detention. In support of his contentions, he placed reliance on the cases reported as PLD 2022 SC 122, PLD 2022 SC 551, 2022 SCMR 1 and 2015 SCMR 1007.

3. The learned counsel for the complainant-respondent argued that the challan was presented on 22.03.2022, while the appellants filed their bail application on 19.03.2024, three days prior to the completion of two years, and as per the law laid by this Court in the case reported as 2001 YLR 2109, the relevant period to be considered is the date of filing of the bail application, making the appellants ineligible for bail on statutory grounds. He also relied on 2004 PCr.LJ 52, to assert that mere delay is not a sufficient ground for bail unless it amounts to an abuse of process or scandalous delay, which is not the case here. He maintained that the learned trial court, in its judgment dated 30.03.2024, correctly held that the manner of occurrence brings the case within the exceptions of Section 497(1)(B) Cr.P.C., and this Court in the case reported as 2000 SCR 1 has elaborated on the concept of hardened, desperate, or dangerous criminals, under which the appellants do not qualify for bail. He further argued that the delay in trial has not been caused by the prosecution but rather by the appellant. He concluded that the impugned order is legal, well-reasoned, and based on the record, with no illegality pointed out by the appellants, making the appeal liable to dismissal with costs.

4. We have heard the learned counsel for the parties and gone through the record. The case history shows that the appellants were implicated in a murder case bearing FIR No.414/21 dated 14.11.2021. The concerned Police conducted an investigation and submitted the challan on 22.03.2022 with significant delay. Thereafter, the complainant challenged the challan through Revision Petition No.81/2022 before 81/2022 the High Court on 23.04.2022, which was decided on 06.02.2025. Simultaneously, complainant filed a private complaint before the trial the Court on 08.04.2022, which resulted in the suspension of proceedings in the challani case. The private complaint proceeded until its withdrawal on 02.03.2024. Thereafter, the appellants filed an application before the trial Court on 19.03.2024 for their release on statutory grounds which was dismissed vide judgment dated 30.03.2024. The appellants then filed a revision petition before the High Court which has been dismissed through the impugned judgment.

5. A perusal of the record reveals that the appellants are seeking bail on statutory grounds as provided under section 497, Cr.P.C. It is a regrettable state of affairs that the revision petition was filed before the High Court on 29.05.2024, yet it remained pending for nearly eight months. Despite this considerable delay, instead of adjudicating the revision petition on merits, the learned High Court merely remanded the case to the trial court, thereby further prolonging the matter. This Court has already taken serious notice of delay in deciding the bail matters in the case reported as Noman Ajmal v. Moheen Naseem and others [2020 YLR Note 110, p-105] where it was observed that that:--

After recording the aforesaid observations, this Court, inter alia, issued following direction:-

However, in the present case, the learned High Court kept the bail matter pending for nearly eight months and, instead of deciding it on its own merits, remanded it to the trial court, resulting in further delay.

6. In the light of arguments addressed at bar, we are of the view that following points need resolution in this case:- i. what is the effect of filing of private complaint and its withdrawal in this case; ii. whether the delay in non-conclusion of trial has to be determined from the date of detention of the accused or from the date of submission of challan; and iii. whether the appellants are entitled to concession of bail on statutory ground.

In our opinion, it was enjoined upon the learned High Court to decide these questions itself. In view of these circumstances, we have passed the short order dated 13.03.2025 remanding the case to the High Court for deciding the matter within a period of one week.

JK/57/SC(AJK) Case remanded.