FAYAZ KHAN Versus MOHSIN SHAH
MUHAMMAD ALI MAZHAR, J.--- This Criminal Petition for leave to appeal is directed against the order dated 29.11.2024, passed by the Peshawar High Court in Cr.M.B.A.No. 3789-P/2024, whereby application for post arrest bail moved on the ground of statutory delay was dismissed.
2. According to the prosecution case, encapsulated in the FIR No.190/2022, dated 09.05.2022, lodged at Police Station, Katlang, District, Mardan under Sections 302, 324, 109 and 34, P.P.C., the complainant reported that on 9.5.2022 at 14.50 p.m., accused Fazal, Saleem and Fayaz (petitioner) were running thresher in their fields, due to which dust particles were spreading and exposing to their house, therefore the complainant along with his sons Talib Shah, Shakeel Khan and Hazrat Hussain moved on the spot and complained but the accused persons started altercation and caused firearm injuries to Shakeel Khan and Hazrat Hussain who were died on the spot whereas, Talib Shah also sustained firearm injuries while the complainant decamped unhurt from the crime scene.
3. The learned counsel for the petitioner argued that the petitioner is incarcerated for last 02 years 05 months and out of 26 witnesses, only 07 witnesses have been examined by the prosecution. It was further averred that both Courts below failed to consider that there is no delay in trial by the petitioner, hence he is entitled for the concession of bail on the ground of statutory delay. The learned counsel further pointed out the report submitted by the learned Trial Court which is actually showing the cause of delay in the trial. He further argued that both the Courts below without examining the record attributed the delay to the petitioner which is not based on factual position reflecting from the record and proceedings of the case.
4. The learned counsel appearing for the State, assisted by Syed Qamar, Inspector, as well the learned counsel representing the complainant, though opposed the bail petition but they failed to satisfy this Court whether the petitioner is responsible for any delay. We also confronted them the report submitted by the learned trial Court wherein the whole story effecting the unreasonable delays are jotted down but they could not deny the reasons of the delay revealed in the report.
5. Heard the arguments. The nitty-gritties of granting or refusing bail in case of non-bailable offences are clearly jotted down under Section 497 of Criminal Procedure Code 1898 (Cr.P.C). wherein it is explicated that accused of non-bailable offence when appears or is brought before a Court, he may be released on bail, but in tandem, a negative covenant is provided when the accused may not be entitled for the concession of bail if reasonable grounds appear for believing that he is guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years. While considering the grant of bail on statutory ground of delay, as provided under the 3rd proviso, appended to Section 497, Cr.P.C, the relevant diligence and circumspection is to get the drift whether the delay in the trial has been occasioned by an act or omission of the accused or any other person acting on his behalf and if it is corroborated from record and proceedings, that the accused is not instrumental in delays, then the Court may direct that any accused be released (a) who, being accused of any offence not punishable with death, has been detained for such offence for a continuous period exceeding one year and whose trial for such offence has not concluded; or (b) who, being accused of an offence punishable with death, has been detained for such offence for a continuous period exceeding two years and whose trial for such offence has not concluded. The 4th proviso accentuates that the provisions of the 3rd proviso to this subsection shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal or involved in terrorism.
6. When any accused applies for post arrest bail other than the ground of statutory delay, obviously the main consideration for the Court is to evaluate whether reasonable grounds appear for believing that he is not guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years and the accused has made out the case of further inquiry on the basis of tentative assessment of the prosecution case. However, if the petition is moved for enlargement on bail on the ground of statutory delay in trial under callous and heedless situations, and predominantly with the assertion that the delay is not attributable to his actions or his representatives, the right to apply bail in such situations is recognized as a safeguard against prolonged detention. While enlarging any accused on bail on the ground of statutory delay, the Court has to mull over and make due diligence, whether the accused is a hardened or dangerous criminal or not. In this case nothing brought on record by the prosecution that the petitioner is not entitled to bail on this ground.
7. The record reflects that vide order dated 18.3.2025, this Court called upon the learned trial Court to furnish the report which was submitted vide Cr.Misc.Application No.561/2025, dated 4.4.2025. The relevant excerpts of the report are reproduced as under: -.
3. The chronicles of the proceedings of this court present in shape of the Order Sheets shows that the accused Fayaz was arrested on 16.07.2022 while in order to set into motion the criminal law, the prosecution submitted the challan against him in terms of section 173, Cr.P.C. on 06.10.2022 with a delay of 80 days. Moreover, the cursory glance of the order sheets of this court depicts the following occasions and time period which created a legal bottleneck in the proceedings of the trial which led to the stagnation of the trial on the part of the prosecution. The said delay occurred on the part of the prosecution which is enumerated in the following order: a. Order Sheet No. 9 shows that PWs were not present which led to the delay of fourteen days. b. Order Sheet No. 11 shows that PWs were not present which led to the delay of fourteen days. c. Order Sheet No. 17 shows that PWs were not present which led to the delay of fourteen days. d. Order Sheet No. 20 shows that PWs were not present which led to the delay of thirty four days. e. Order Sheet No. 21 shows that PWs were not present which led to the delay of seven days. f. Order Sheet No. 22 shows that PWs were not present which led to the delay of twelve days. g. Order Sheet No. 23 shows that PWs were not present which led to the delay of nine days. h. Order Sheet No. 31 shows that PWs were not present which led to the delay of fourteen days. i. Order Sheet No. 33 shows that PWs were not present which led to the delay of fourteen days. j. Order Sheet No. 35 shows that PWs were not present which led to the delay of seven days. k. Order Sheet No. 36 shows that PWs were not present which led to the delay of twenty-one days. l. Order Sheet No. 38 shows that PWs were not present which led to the delay of twenty days. m. Order Sheet No. 41 shows that PWs were not present which led to the delay of seven days. n. Order Sheet No. 42 shows that PWs were not present which led to the delay of thirteen days. o. Order Sheet No. 44 shows that PWs were not present which led to the delay of fourteen days. p. Order Sheet No. 47 shows that PWs were not present which led to the delay of fourteen days. q. Order Sheet No. 49 shows that prosecution was on strike which led to the delay of fourteen days. r. Order No. 56 shows that PWs were not present which led to the delay of twenty-one days. s. Order No. 58 shows that PWs were not present which led to the delay of fourteen days. t. Order No. 59 shows that PWs were not present which led to the delay of fourteen days.
It is also pertinent to mention here that delay also occurred on the part of complainant side which is mentioned in the following manner: u. Order Sheet No. 5 shows that no proceedings could take place due to absence of complainant oral account which led to the delay of fourteen days. v. Order Sheet No. 24 shows that no proceedings could take place due to absence of complainant counsel which led to the delay of fourteen days. w. Order Sheet No. 27 shows that no proceedings could take place due to request of complainant counsel which led to the delay of fourteen days.
4. The aforesaid synopsis of the proceedings shows that due to the absence of the PWs a delay of about 291 days occurred on the part of the prosecution and when the same is also viewed along with the delay of the submission of the challan which is about 80 days, then a total delay of about 371 days occurred on the part of the prosecution while accused had no fault of his own in the same or which could suggest that the proceedings were halted on the part of the accused while as discussed aforesaid that delay in the trial on the part of complainant caused a delay of 42 days therefore a total delay of 413 days occurred on the part of the prosecution and complainant.
5. The crux of the aforesaid picture pertaining to the legal captivity of the accused shows that so far he has spent about 413 days in detention which is the fault of the prosecution and complainant side jointly while the record also divulges that the accused has spent about a total period of about 990 days in incarceration while the remaining period of about 577 days could not be put on the shoulders of the prosecution and complainant side as the said period was legally consumed in the legal proceedings of the case which also included casual leaves of the Presiding Officer, Note Readers, strikes, polio duty etc.
6. More importantly when the trial was initially commenced against the accused Fayaz, there were about 24 witnesses enlisted in the calendar of the challan out of which 10 witnesses were abandoned by the prosecution and complainant side while 7 witnesses were examined and the case was about to ripe as same was fixed for oral account on 13.07.2024 but on 07.09.2024, co-accused namely Muhammad Saleem was arrested by the local police, hence prosecution was directed to submit supplementary challan against him which was submitted by the prosecution on 19.10.2024. Thereafter the accused were once against charge-sheeted on 26.10.2024 which led to the commencement of de novo trial
8. The raison d'etre of setting the law into motion in criminal cases is to make an accused face the trial and not to punish an under-trial prisoner or let him rot behind the bars. It is a well settled principle of the administration of justice in criminal law that every accused is innocent until his guilt is proved and this benefit of doubt can be extended to the accused even at the bail stage, if the facts of the case so warrant. The basic philosophy of criminal jurisprudence is that the prosecution has to prove its case beyond reasonable doubt and this principle applies at all stages including pre-trial and even at the time of deciding whether accused is entitled to bail or not which is not a static law but growing all the time, moulding itself according to the exigencies of the time. In order to ascertain whether reasonable grounds exist or not, the Court should not probe into the merits of the case, but restrict itself to the material placed before it by the prosecution to see whether some tangible evidence is available against the accused.
9. While the report of the learned trial Court is portrayal of a horrifying and depressing picture but at the same time it is classical example of prosecution s cavalier and heedless attitude. Quite the opposite and being sanguine to the dictates of law, the prosecution enacts a vital role and sense of duty in the administration of criminal justice. Unless the prosecution performs a proactive and pragmatic role, the concept of prosperous prosecution cannot be achieved. No doubt, the registration of First Information Report sets in motion the machinery of law for the purposes of triggering trustworthy and unbiased investigation by the police but it is also a ground reality that the duty of prosecution persists till final verdict. In fact, under the doctrine of administration of criminal justice, a Herculean task is entrusted to the prosecution and the prosecutors. After submission of report under Section 173 of Cr.P.C, the role of prosecutor becomes more essential, where relentless liaison is required with the Investigation Officer to ensure that immediately after framing of charge by the trial Court, the prosecution witnesses are produced according to the calendar of witnesses as soon as possible but within a reasonable period of time. Regrettably, it is often seen that number of years are lapsed but evidence does not complete and during such prolonged period either intentionally or unintentionally, sometimes the star witness or witnesses are died or the investigation officer is said to have died or retired from service or his whereabouts are not found, which drastically damages the case of prosecution and the trial court is found helpless and an unassisted for determining the guilt of actual culprit.
10. No plausible justification was shown as to why such prolong delay was caused and why the prosecution was so helpless and failed to produce prosecution witnesses in Court for early and timely conclusion of trial. Due to their reckless conduct the accused is suffering as victim of protracted litigation without any progress in the trial. Without a doubt, the learned trial Court has submitted all causes of delay very candidly in its report and attributed most part of the delay to the prosecution and the complaint but we want to articulate here in unison, that if such excessive and unwarranted delays are occasioned, the learned trial Court under the provision of Cr.P.C, was neither so helpless nor powerless, rather, it ought to have ensured timely compliance with a well-balanced case management system, specifying for its own docket for filing reports under Section 173 Cr.P.C without delay with regular follow ups and immediately on framing of charge, a reasonable timeline of producing the prosecution witnesses by the I.O and sterns efforts are also required to adopt for curtailing the frequency of unnecessary adjournments if sought by any party. Disciplinary action may also be proposed to the competent authority against the Investigating Officer, who is found negligent in his lawful duties or intentionally avoiding the production of witnesses in the Court. At the same time, no latitude or leniency should be allowed to the complainant and accused while aiming to cause the delay in the proceedings on one or other pretexts. Delay on the part of I.O or the prosecution, may also be referred to the concerned Prosecutor General, Inspector General of Police, Senior Superintendent of police, Investigation/Deputy Inspector General of Police, Investigation to ensure the prompt compliance in order to curtail the delay in the trials. Last but not least, the matter may also be reported to the High Court through Registrar, or Chairman/Head of Member Inspection Team (MIT) for bringing all such acute lapses, hindering the criminal administration of justice in the notice of honourable Chief Justice of High Court. According to Article 202 of the Constitution of the Islamic Republic of Pakistan 1973, subject to the Constitution and law, the High Court may make rules regulating the practice and procedure of the Court or of any court subordinate to it, while under Article 203, each High Court has been conferred and vested with the powers to supervise and control all courts subordinate to it so under the constitutional mandate, appropriate action can also be initiated by the High Court in its supervisory jurisdiction.
11. In the case of Mrs. Faryal Arif Latif v. Mr. Arif Latif (2024 SCP 417= 2025 SCMR 395) , one of us, discussed the hardship, caused due to inordinate and unwarranted delays in civil and criminal cases both with its aftermath and held that the function of the court is to administer substantial justice between the parties after providing ample opportunity for hearing which is a significant component and virtue of a fair trial, whereas the procedure serves as a machinery with the object of facilitating and not obstructing the administration of justice. Another undeniable reality is that the number of cases in the court docket is increasing exponentially due to the surge in litigation across diverse fields. Every judge is a master of his own docket, and sanguine to the huge backlog in almost every court of this country, it is high time for courts to maintain proper in-built Case Management Systems across the board, even at the grassroots level. If a proper Case Management System is developed and each court self-organizes its own docket rationally and classifies timelines for each stage in the proceedings step-by-step and strictly adheres to it, with the parties and their advocates also adhering to it, then the likelihood or probability of inordinate delays or impediments in the disposal of cases will be much lessened and moderated. This also underscores the eminence of timely and efficacious dispensation of justice, because if the judicial system fails to impart justice timely, it creates exasperation and disgruntlement in the public at large which also results in a loss of faith in the entire judicial system of the country and widespread criticism that court cases linger on for years and decades. The accused and the victims of crimes have to wait several years to get justice, which causes serious sufferings and distress.
12. This Criminal Petition was converted into an appeal and allowed vide our Short Order dated 08.07.2025 which is reproduced as under: -
For the reasons to be recorded later, this Criminal Petition is converted into an appeal and allowed. As a consequence, thereof, the impugned order passed by the learned High Court in Cr. M B.A.No.3789-P/2024 dated 29.11.2024 is set aside. The petitioner is admitted to post-arrest bail in F.I.R.No.190 dated 09.05.2022 lodged under Sections 302/324/109/34, P.P.C. registered at Police Station Katlang, District Mardan, subject to furnishing his bail bonds in the sum of Rs.200,000/- with one surety in the like amount to the satisfaction of the learned Trial Court. However, if the petitioner misuses or abuses the concession of bail and does not cooperate in the investigation and the trial, the learned Trial Court may be at liberty to cancel the bail. The observations made in this bail order are tentative in nature and shall not prejudice the case of either party.
13. Above are the reasons assigned in support of our Short Order. The learned trial Court is directed to conclude the trial preferably within four months and pass the judgments on merits. Office is directed to transmit the copy of this Order to the Prosecutor General and Inspector General of Police, Khyber Pakhtunkhwa for ensuring the presence of remaining prosecution witnesses in the trial Court without any further delay.
MH/F-16/SC Bail allowed.