PLJ 2025 SC (Cr.C.) 11
[Appellate Jurisdiction]
Present: Jamal Khan Mandokhail, Mrs. Ayesha A. Malik and
Syed Hasan Azhar Rizvi, JJ.
ADNAN SHAFAI--Petitioner
versus
STATE and another--Respondents
Crl. P.L.A. No. 238 of 2024, decided on 5.6.2024.
(Against the order dated 04.03.2024 passed by the Lahore High
Court, Lahore passed in Crl. Misc No. 68511-B of 2023).
Criminal
Procedure Code, 1898 (V of 1898)--
----S. 497(1)--Statutory
ground--Post arrest bail-- Under third proviso to Section 497(1) of Cr.P.C, a
statutory ground exists for granting post-arrest bail to an accused due to
delays in conclusion of trial--A person accused of an offence not punishable by
death has right to be released on bail if they have been detained for over a
year, provided delay in trial’s conclusion was not caused by their actions or
actions of someone on their behalf, and situation does not fall under fourth
proviso to Section 497(1) of Cr.P.C. [P.
13] A
Bail--
----Statutory ground--Supreme Court
in case of Shakeel Shah,[1]
elaborately explained concept of bail on statutory grounds and ruled that it is
subject to two exceptions, a) Delay in conclusion of trial if occasioned by an
act or omission of accused or by any other person acting on his behalf; b) The
accused, a hardened, desperate or dangerous criminal, in opinion of Court. [Pp.
13 & 14] B
2022
SCMR 1.
Criminal
Procedure Code, 1898 (V of 1898)--
----S. 497--Pakistan Penal Code, (XLV of 1860), 409 &
109--Prevention of Corruption Act, (II of 1947, S. 5(2)--Anti-Money Laundering
Act, (VII of 2010), Ss. 3/4--Bail after arrest--Statutory ground--The
petitioner was arrested on 05.08.2022 and charge against him was framed on
27.06.2023--He made an application for his post-arrest bail on statutory ground
on 07.08.2023--The order sheets of period commencing from date of arrest, date
of framing of charge till date of his filing application for bail does not
reflect any design, pattern, or concerted effort on part of accused to delay
conclusion of trial--During this period, he made two formal applications namely
an application under section 265-K, Cr.P.C. and an application for excluding
Khurram Iqbal from proceedings of this case--Perusal of these applications do
not reflect any design, pattern, or concerted effort by petitioner to delay
conclusion of trial--An application for protection of accused’s rights and just
for fair trial guaranteed under Article 10-A of Constitution of Pakistan, 1973
does not amount to any design, pattern, or concerted effort by accused to delay
trial--Thus, Petitioner’s case does not fall within ambit of first
exception--The tentative assessment of material placed before this Court shows
that Petitioner is not a hardened, desperate, or dangerous criminal--He is a
government employee working in Pakistan Railways who is not likely to cause any
injury to others--It is manifest that a case of statutory ground of delay in
conclusion of trial is prima facie made out within remit of Section 497
Cr.P.C. and judgments rendered by Supreme Court. [Pp. 14
& 15] C, D & E
2022 SCMR 1 and PLD 2022 SC 112.
Zill-e-Huma,
ASC and Mr. Muhammad Amir Malik, AOR for Petitioner.
Mr. Rashdeen Nawaz Kasuri, Addl.
A.G. for Pakistan, Mr. Irfan Zia, Addl.P.G., Punjab, Naeem Sajid,
Inspector, FIA, Lahore and Ms. Huma Noreen Hassan, Legal Consultant Pak
Railways for State.
Mian Sohail Anwar, ASC for
Complainant.
Date of hearing: 5.6.2024.
Judgment
Syed Hasan Azhar Rizvi, J.--Through
the present petition, the petitioner seeks leave to appeal against the order of
Lahore High Court, Lahore, dated 04.03.2024, (Impugned Order) whereby
the post-arrest bail has been declined to him in FIR No. 10/2022 dated
05.07.2022, registered under Sections 109 and 409, P.P.C. read with section
5(2) of the Prevention of Corruption Act, 1947 and Section 3/4 of Anti-Money
Laundering Act, 2010 at Police Station FIA, Anti-Corruption Circle, Lahore.
2. Briefly,
the factual background of the case is that the petitioner being a Project
Director received cash amount of Rs. 15.989 Million involved in 101 local
purchase cases. Out of 101 local purchase cases, 33 were matured for financial
year 2020-2021 and the remaining 68 cases were available with him when he
relinquished the charge of post of PD/SR/100 Locos on 24.05.2021. Consequently,
FIR was registered against the petitioner on the inquiry report conducted by
the officials of Pakistan Railways. The inquiry committee found that the
petitioner being competent to sanction and withdraw cash and local purchase is
responsible to adopt proper procedure and its account but failed to do.
3. The learned counsel for
the petitioner contends that the petitioner seeks his post-arrest bail on
statutory ground only. The Petitioner’s trial could not be concluded due to the
consistent absence of prosecution witnesses; there is not a single adjournment
sought by the petitioner or his counsel on the dates of the hearing; it is the
prosecution that is responsible for causing a delay in the conclusion of the
trial.
4. The learned Law officers
assisted by the counsel for the complainant contend that petitioner has caused
delays in the conclusion of trial by repeatedly filing baseless applications,
which have consumed substantial time of Court. Therefore, he is not entitled to
post-arrest bail on statutory grounds, as his actions have contributed to the
trial’s delay.
5. We have heard the
arguments advanced by the learned counsel for the parties and perused the
record of the case.
6. This case does not
involve any crime punishable by death. Under the third proviso to Section
497(1) of the Cr.P.C, a statutory ground exists for granting post-arrest bail
to an accused due to delays in conclusion of the trial. A person accused of an
offence not punishable by death has the right to be released on bail if they
have been detained for over a year, provided the delay in the trial’s
conclusion was not caused by their actions or the actions of someone on their
behalf, and situation does not fall under the fourth proviso to Section 497(1)
of the Cr.P.C.
7. This Court in the case
of Shakeel Shah,[2]
elaborately explained the concept of bail on statutory grounds and ruled that
it is subject to two exceptions:
a) Delay in conclusion of the trial if
occasioned by an act or omission of the accused or by any other person acting
on his behalf;
b) The accused, a
hardened, desperate or dangerous criminal, in the opinion of the Court.
Now, we proceed to examine the instant case on the touchstone
of Shakeel Shah case (supra) to determine
whether it falls in any of exceptions laid down therein.
I. DELAY IN CONCLUSION OF THE TRIAL IF
OCCASIONED BY AN ACT OR OMISSION OF THE ACCUSED OR BY ANY OTHER PERSON ACTING
ON HIS BEHALF
8. This Court in the Shakeel Shah case (supra) expounded this
exception and explained it in the following terms:
“The act or omission
on the part of the accused to delay the timely conclusion of the trial must be
the result of a visible concerted effort orchestrated by the accused. Merely
some adjournments sought by the counsel of the accused cannot be counted as an
act or omission on behalf of the accused to delay the conclusion of the trial, unless
the adjournments are sought without any sufficient cause on crucial hearings,
i.e., the hearings fixed for examination or cross-examination of the
prosecution witnesses, or the adjournments are repetitive, reflecting a design
or pattern to consciously delay the conclusion of the trial. Thus, mere
mathematical counting of all the dates of adjournments sought for on behalf of
the accused is not sufficient to deprive the accused of his right to bail under
the third proviso. The statutory right to be released on bail flows from the
constitutional right to liberty and fair trial under Articles 9 and 10A of the
Constitution. Hence, the provisions of the third and fourth provisos to Section
497(1), Cr.P.C must be examined through the constitutional lens and fashioned
in a manner that is progressive and expansive of the rights of an accused, who
is still under trial and has the presumption of innocence in his favour. To
convince the Court for denying bail to the accused, the prosecution must show,
on the basis of the record, that there is a concerted effort on the part of the
accused or his counsel to delay the conclusion of the trial by seeking
adjournments without sufficient cause on crucial hearings and/or by making
frivolous miscellaneous applications.”
(emphasis
added)
9. In the present
case, the petitioner was arrested on 05.08.2022 and the charge against him was
framed on 27.06.2023. He made an application for his post-arrest bail on
statutory ground on 07.08.2023. The order sheets of the period commencing from
the date of arrest, date of framing of charge till the date of his filing the
application for bail does not reflect any design, pattern, or concerted effort
on the part of the accused to delay the conclusion of the trial. During this
period, he made two formal applications namely an application under section
265-K, Cr.P.C. and an application for excluding Khurram Iqbal from the
proceedings of this case. Perusal of these applications do
not reflect any design, pattern, or concerted effort by the petitioner to delay
the conclusion of the trial. An application for the protection of the accused’s
rights and just for fair trial guaranteed under Article 10-A of the
Constitution of Pakistan, 1973 does not amount to any design, pattern, or
concerted effort by the accused to delay the trial. Thus, the Petitioner’s case
does not fall within the ambit of first exception.
II. THE ACCUSED,
A HARDENED, DESPERATE OR DANGEROUS CRIMINAL, IN THE OPINION OF THE COURT
10. Although this
exception is not pleaded against the Petitioner before this
Court nor mentioned anywhere in the impugned orders however, it is
pertinent to consider whether the petitioner’s matter falls under the second
exception. The phrase “a hardened, desperate or dangerous criminal” denotes an
accused who is likely to seriously injure and hurt others without caring for
the consequences of his violent act and will pose a serious threat to the
society if set free on bail. Such tentative finding as to character of the
accused must be based upon careful examination of the facts and circumstances
of the case, supported by sufficient incriminating material.”[3]
11. The tentative assessment of the material
placed before this Court shows that Petitioner is not a hardened, desperate, or
dangerous criminal. He is a government employee working in Pakistan Railways
who is not likely to cause any injury to others.
12. In view of what has been discussed above,
it is manifest that a case of statutory ground of delay in the conclusion of
trial is prima facie made out within the remit of Section 497 Cr.P.C. and
judgments rendered by this Court.[4]
13. For the above
reasons, this petition is converted into an appeal and allowed. The impugned
order of the High Court dated 04.03.2024 is set aside. The petitioner is
granted post-arrest bail