CRIMINALPETITIONNO .1233OF2023

INTHESUPREMECOURTOFPAKISTAN

(AppellateJurisdiction)

 

Present:

Mr. Justice Amin-ud-Din Khan Mr. Justice Athar Minallah

 

CRIMINALPETITIONNO.1233OF2023

(Against the judgment dated 03.10.2023 of the Lahore High Court, Lahore passed in Cr.Misc.No.53730-B of 2023)

 

MuhammadUsmans/oMuhammadArshad …………………………………Petitioner

 

Versus

The State & another                                                                    …Respondents For the Petitioner:                            Mr. Qaiser Imam, ASC

FortheState:                       Mr.AliAhmedGillani,AdditionalProsecutor

General,Punjaba/wMushtaq,Inspector.

Dateofhearing:                        30.11.2023

ORDER

AtharMinallah,J.MuhammadUsman,sonofMuhammadArshad

(‘the petitioner’), was arrested on 29.04.2021 because he was nominated in FIR No.139/2021, dated 30.3.2021, registered at the PoliceStationPhularwan,DistrictSargodhaforallegedlycommitting the offences under sections 302, 148, 149 and 109 of the Pakistan Penal Code, 1860 (‘PPC’).

2. The petitioner had filed his first application seeking bailon meritsanditwasdismissedbytheHighCourton27.9.2022.Hethen filed another petition which was not pressed in order to avail the remedy on the fresh ground of delay in conclusion of trial. This groundhadnotripenedwhenthe twopetitionswerefiled.Sincethe second petition was not pressed, therefore, it was dismissed by the 5.2023.Consequently,athirdpetition was filed on the sole ground of seeking bail on statutory delay. The petition was, however, dismissed vide order dated 10.8.2023 on accountofnon-prosecution.Thepetitionerfiledafreshpetitionandit wasdismissedbytheHighCourtvidetheimpugnedjudgmentdated

 

03.10.2023. The petitioner has, therefore, sought leave againstthe impugned judgment.

3. We have heard the learned counsel and the learnedAdditional Prosecutor General, Punjab.
4. It is settled law that a second bail petition repeating the same grounds that were earlier taken is not competent.1Moreover, the groundsraisedbyanaccusedinasubsequentbailapplicationwhich wereavailableatthetimeoffilingoftheearlierpetitioncouldalsonot be treated as fresh grounds nor urged for the purposes of seeking the same relief. This Court has already highlighted theprinciples regardingmaintainabilityofasubsequentbailpetition.2Iftheground on which bail has been sought subsists when a bail petition is withdrawn then such a ground can also not be taken again.3 However,theexceptiontothisruleisinthecaseofentitlementofbail on statutory grounds as has been held by this Court. If any act or omission of the accused has hindered the conclusion of trial within theperiodspecifiedinthethirdprovisoofsection497(1)oftheCode ofCriminalProcedure,1868(‘P.C.’)thenaright,ascontemplated thereunder,willnotaccrueinthelatter’sfavourand,therefore,heor she, as the case may be, would not become entitled to be released on bail on the statutory ground of delay in conclusion of the trial. Nonetheless, if after the rejection of the plea of bail on statutory grounds, the accused has subsequently corrected himself/herself and hasabstainedfromdoinganyactoromissioninthefollowingperiod specified under the third proviso, then a fresh ground would accrue totheaccusedtoinvokethejurisdictionofthecourtforgrantofbail. Thethirdprovisotosection497(1)ofCr.P.C.wouldthusbecome

1ShahbazAkmalv.TheStateandanother(2023SCMR421)

2NazirAhmed&anotherv.TheState&another(PLD2014SupremeCourt241)

3ShahbazAkmalv. TheStateandanother(2023SCMR421)

 

operative as and when the period specified therein has expiredbut thetrialhasnotconcludedwithoutanyfaultonpartoftheaccused.4

5. In the case in hand, the ground of statutory delay was notavailabletothepetitionerwhenhehadsoughttheconcessionof bail through the two attempts made by him. It was during subsistence of the second bail petition that the period specified under thethirdprovisohadripenedand,therefore,afreshgroundbecame available to seek bail. The petition before the High Courtwas dismissed for non-prosecutionand suchdismissal did not prejudice his right to file a fresh petition before the High Court, which he did. The petition was competent because a fresh ground of delay in conclusionoftrialhadbecomeavailabletohim. Thereisnoforcein theargumentadvancedbytheprosecutionthatthepetitionwasnot maintainableonthetouchstoneofprincipleslaiddownbythisCourt.
6. The next question that requires to be examined is whetherarighthadaccruedinfavourofthepetitionertobereleased on bail because of delay in the conclusion of the trial as contemplated under the third proviso of section 497(1). It is not disputed that the twoyearperiodspecifiedinthethirdprovisoofsection497(1)ofthe Cr.P.C. has passed and, therefore, this crucial condition has been met. It is also not disputed that, despite more than two years of continuous incarceration of the petitioner, the trial has not concluded.The delay in conclusion of trial is not attributable to the petitioner nor his counsel, rather, it has been on account of the abscondance of the co-accused and their surrender or arrest at different times. Each time the charge had to be reframed. In response to our repeated queries, the learned State Counsel could not persuadeusthatthedelayinconclusionofthetrialcouldbe

⁴SyedAyeshaSubhani v.TheStateandothers(PLD2023SupremeCourt648)

 

attributedtothepetitioner.Thepetitionerwasnotatfaultandyethe had to suffer the hardship of incarceration of more than two years. The co-accused are stated to be close relatives of the petitioners and, therefore,theStateCounselhasarguedthathiscomplicitycouldnot beruledout.Thelegislaturehasexpresslyconfinedthedelayunder thethirdprovisotoanactoromissionofthe’accused’or’anyperson actingonhisbehalf’.Theaccusedcannotbemadeliablefortheacts or omissions of a co accused regardless of the relationship, except when the prosecution can clearly show, based on undisputed facts that the accused seeking bail was complicit. The latter’s acts and omissions,orthoseofapersonactingonhisbehalf,arecrucialand could be considered for the court to determine the right to be released on bail on the ground described under the third proviso. The delay caused by the co accused is not attributable to the petitioner because no act or omission on the latter’s part nor a person acting on his behalf could be shown.

7. Theobjectofrecognitionofarighttobereleasedonbail on statutory ground, subject to meeting the conditions described underthethirdandfourthprovisosofsection497(1)oftheCr.P.C.is to ensure that criminal trials are not unnecessarily delayed and that the prosecution is not enabled to prolong the incarceration or Therightofanaccusedtoseek bail on statutory grounds cannot be defeated for any otherreason exceptonthegroundashasbeenexplicitlydescribedunderthethird andfourthprovisostosection497(1)ofCr.P.C. Theaccusedbecomes entitled to bail as of right after the statutory period expressly stated inclauses(a)and(b),asthecasemaybe,haveexpiredandthetrial has not concluded. This accrual of right is manifest from the languageofthethirdproviso.Sucharightcanonlybedefeatedifthe

 

prosecutionisabletoshowthatthedelayinthetrialwasattributable toanactoromissionoftheaccusedorapersonactingonhisbehalf. Iftheprosecutionsucceedsinshowingtothesatisfactionofthecourt that the accused was at fault then the right stands forfeited. It has been held by this Court that the right recognized under the third proviso ofsection497(1) cannotbedeniedtoanaccused onthe basis of discretionary powers of the court to grant bail. The right has not beenlefttothediscretionofthecourt,rather,itsaccrualissubjectto thefulfillmentoftheconditionsmentioned underthethirdprovisoof section 497(1) of the Cr.P.C. Moreover, while calculating the quantum ofdelayattributableto anaccused, the courtisrequiredto consider whether or not the progress and conclusion of the trial was in any mannerdelayedbytheactandomissiononthepartoftheaccused. Whileascertainingthedelay,thecumulativeeffectindisposalofthe casehastobeconsideredanditsassessmentcannotbedetermined on the basis of mathematical calculations by excluding those dates for which adjournments had been sought by the accused or the latter’s counsel. The 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.Therecordingofthestatementofalastwitnesswouldalso not defeat the right recognized under the third proviso and it would beunreasonabletoconcludethatthetrialhasbeencompleted.5

8.  

• On the touchstone of the principles highlighted herein above,arighthasaccruedinfavourofthepetitionerunderthethird provisoofsection497(1)oftheCr.P.C.,tobereleasedonbailbecause theconditionshavebeenmetandtheprosecutionwasnotableto

⁵Nazir Hussain v. Zia-ul- and others (1983 SCMR 72), Sher Ali alias Sheri v. The State (1998SCMR190),AkhtarAbbasv. State(PLD 1982SC 424), Moundarand others v. The State (PLD 1990 SC 934), Abdul Rashid v. The State (1998 SCMR 897),ZahidHussainShahv.TheState(PLD1995SC49),MuhammadSiddiquev. Muhammad Behram and another (1998 PCr.L.J. 358)

 

persuadeusthatthedelay inconclusion oftrialcanbe attributedto the petitioner nor that the mischief contemplated under thefourth proviso is attracted.

9. Fortheabovereasons,thispetitionisconvertedintoan appeal and is allowed. The petitioner is, therefore, extended the concession of bail subject to his furnishing bail bond in the sum of Rs.200,000/-(rupeestwohundredthousands)withonesuretyeach inthelikeamounttothesatisfactionofthetrialcourt. Thepetitioner shall be released forthwith if not required to be incarcerated in connectionwithsomeothermatter.Itisnotedthat theobservations recorded inthisorder are basedon the tentativeassessmentofthe recordwhichwasplacedbeforeusand,therefore,itshallnotinany mannerprejudicetheproceedingspendingbeforethetrialcourt.

 

Judge

Judge

Islamabadthe

30thNovember2023

APPROVEDFORREPORTING’

AamirSh./*

• Parties Name:: MuhammadUsmans/oMuhammadArshad Versus The State & another Mr. Qaiser Imam, ASC FortheState Mr.AliAhmedGillani,AdditionalProsecutor General,Punjaba/wMushtaq,Inspector.