Kifayat Ullah Khan Vs Waheed ullah etc

w IN THE PESHAWAR HIGH COURT,

BANNU BENCH

(Judicial Department)

Cr.Misc : BA No.24 6-B1 2025

Kifayat Ullah Khan Vs Waheed UIIah, etc.

ORDER

Date of hearing 11.07.2025

For petitioner(s):

For respondent(s):

Advocate

For State:

4 **!f****

MUHAMMAp TARIO AFRIDI. J.- The accused / petitioner Kifayat Ultah Khan seeks post-arrest bail on the statutory grouncl of delay in conclusion of his trial in case FIR No.221 clated 23.05.2021 registered under Sections 302 I 324 I 34 PPC at Police Station Gambila, District Lakki Marwat.

2.Brief t-acts ol'the case are that the complainant Waheed LJllah has accused Kifayat Ullah (the petitioner) of murdering his father Muhammad Ali, however, the complainant alleged that the petitioner's brother, Nadeem Khan, played the commanding role in the murder. The petitionet:'s applications fbr post arrest bail were dismissed on merits by all the Courts, including the Peshawar High court, Bannu Bench. on (Ghafoor Zarnan) (S.8.) IIon'ble Mr. Justice Muhammad Tariq A

22.11.2024, the accused / petitioner moved another bail v application, this time citing statutory grounds, however, the Additional Sessions Judge-IV, Lakki Marwat dismissed the application through an order dated 04.12.2024. The petitioner is now seeking relief from this Court, alleging that statutory grounds warrant his release on bail.

3.There is no denial of the fact that the accused / petitioner Kifayat Ullah was arrested on 2L.08.2021 and has remained behind bars for a continuous period exceeding two years.

4 Ordinarily, such prolonged detention would attract consideration under the statutory ground for post-arrest bail.

However, the record reflects that the delay in the conclusion of trial is not solely attributable to the prosecution.

4.The accused / petitioner Kifayat Ullah and his co-accused Nadeem Khan are brothers. The latter was given a commanding role in the alleged murder of Muhammad Ali and was, therefore, released on bail by the Additional Sessions Judge-II, Lakki Marwat vide order dated 07.12.2021. Counsel for the accused / petitioner argued that perusal of the order sheets No.3, 67, 68, 69, 70, 71, 72 and 73, demonstrates that trial progress has been hindered by repeated adjournments, largely due to the (Ghafoor Zaman) (S.B.) Hon'ble Mr. Justice Muhammad Tariq Afridi

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absence of co-accused Nadeem Khan (the petitioner's brother) v and the accused / petitioner cannot be held accountable for these delays. This argument seems compelling at first glance, but loses persuasiveness when considered alongside the conduct of accused exhibited during the trial.

5.Record reveals that on 07.04.2025, when the complainant Waheed Ullah was present for cross-examination, the accused / petitioner not only failed to ensure the presence of his counsel, '0 but also misbehaved with and threatened the Presiding Officer, prompting the Trial Court to order preservation of CCTV footage of the incident. The proceedings were adjourned without any progress. On the next date, i.e. 16.04.2025, he again failed to produce counsel and repeated the threatening behaviour, resulting in further adjournment with no progress.

On 03.05.2025, defence counsel appeared before the Trial Court and submitted that he had been advised by the accused / petitioner to avoid participation in evidence and cross- examination.

6.The petitioner's conduct is further reflected in the proceedings of Trial Court, where a reference was sent to this Court for transfer of the case. It reveals that on 24.05.2025, the accused / petitioner sought a stay of the trial proceedings on the ground that he had moved an application against the Trial Judge (Ghafoor Zaman) (S.B.) I{on'ble Mr. Justice Muhammad Tariq Afridi

before the Supreme Court of Pakistan. The Presiding Officer

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recused himself from the trial to avoid any perceived bias and to maintain the trial Court's integrity and impartiality. Consequently, the matter was transferred to the Court of Additional Sessions Judge-I, Lakki Marwat by this Court vide order dated 05.06.2025.

7.The cumulative effect of these facts and circumstances clearly shows that the delay in the conclusion of trial has been significantly caused by the accused / petitioner and his co- .a accused Nadeem Khan (the petitioner's brother). The apparent intent on their part appears to be a deliberate attempt to delay the trial proceedings for achieving the desired result.

8.It is a well settled principle of criminal jurisprudence that where delay is occasioned by an act or omission of the accused or any other person acting on his behalf, then the benefit of statutory delay cannot be extended to him. The conduct of the accused, as reflected from the record, falls squarely within the parameters of this principle. Reliance is placed on Babar Hussain v. The State and others (2016 SCMR 1538), wherein the Supreme Court ruled:

We are of the considered view that even after lapse of two years, the conduct of an accused seeking adjournments can be taken note of and bail can be denied by a Court even on the statutory ground. We have noticed that adjournments were sought (Ghafoor Zaman) (S.B.) Hon'ble Mr. Justice Muhammad Tariq Afridi

and even the cross-examination of the eye-witnesses was not conducted by the petitioner,s counsel, for which no plausible explanation has been offered. In these specific circumstances, we do not find the petitioner to be entitled to the concession of bail on statutory ground as a matter of right.

9.Moreover, as noted above, the accused / petitioner misbehaved with and threatened the Presiding Officer on two occasions. Such conduct suggests that the accused / petitioner is a desperate and dangerous criminal. The statutory provision contained in Section 497 Cr.P.C. is explicit and, therefore, the accused / petitioner's prolonged custody exceeding two years a does not automatically entitle him to statutory relief due to his demonstrated conduct during the trial proceedings.

10.As discussed above, the accused / petitioner misbehaved with and threatened the trial Court judge, on not one but two separate occasions. This Court cannot turn a blind eye to such conduct, which not only undermines the sanctity of the Judiciary as an institution in the estimation of the people at large but also hampers the fair and orderly administration of justice. 'oAudi alteram partem" is a Latin phrase meaning "listen to the other side" is a fundamental principle of natural justice, requiring that no one should be condemned unheard.

Similarly, Article 10A of the Constitution requires that in any criminal charge against him, a person shall be entitled to a fair (Ghafoor Z,aman) (S.8.) Hon'ble Mr. Justice Muhammad Tariq Afridi

trial and due process, however, this does not entitle him to

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disrespect the Court.

11.The record demonsffates that the accused / petitioner consistently obstructed the trial, used delaying tactics and exhibited threatening behaviour toward the Court, disentitles him to be released on bail on the statutory ground of delay in concluding his trial. Consequently, this petition stands dismissed with directions to the trial Court to proceed with the trial on a day-to-day basis to conclude the proceedings expeditiously, thereby avoiding further delay. The trial Court is funher directed to ensure that the defence counsel conducts the cross-examination of the remaining witnesses without fail and if the defence counsel fails to appear for cross-examination, the Court may appoint a state-funded defence counsel, ensuring the accused's right to legal representation under Section 340(1) Cr.P.C. and Article l0A of the Constitution of Pakistan. The Court shall provide the accused one last chance to appoint a new counsel making it clear that the trial will proceed without funher delay or adjoumments, and if the accused fails to affange a new counsel within the stipulated time, the Court may proceed with the case and decide the matter relying on the existing I available evidence on record. Bail refused.

(Ghafoor Zaman) (S.B.) Hon'ble Mr. Justice Muhammad Tariq Afridi

12.The Additional Registrar of this Bench is directed to

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communicate a copy of this order to the Trial court for compliance with the directions contained hereinabove.

,rll- Announced 11.07.202s Ury

JUDGE

(Ghafoor Zamanj (S.B.) Hon'ble Mr. Justice Muharnmad Tariq Afridi