Ilyas alias Patar Vs The State etc

v.

IN THE PESHAWAR IIIGH COURT,

BANNU BENCH

(Judicial Department)

Cr.Misc : BA No.645 -B 12024

Ilyas alias Patar v.

The State etc.

ORDER

Date of hearing: 16.01.2025

For petitioner: Mr. Tauqeer Ahmad Advocate

For respondent:

Muhammad Yousaf in Derson

For State: Mr. Naiib Ullah. A.A.G.

***r.rr * *

Dr. Khurshid lqbal. J.-

1.The petitioner / accused Ilyas alias Patar seeks bail on the statutory ground of delay in conclusion of his trial in case FIR No.809, dated 03.09.2021, registered under section 302 PPC, read with section 15 of the Khyber Pakhtunkhwa Arms Act,20l3, at Police Station Naurang, Lakki Marwat.

2.Precisely, the allegations contained in the FIR are that on 03.09.2021, Saif-ur-Rehman, ASI, Police Station Naurang, received information that a man has been murdered with firearm, and his body lying in the fields of Allah Dad Begu Khel. Pursuant to this, the ASI, accompanied by a police contingent, rushed to the spot. He found the dead body, but no near or dear of the deceased was present to report the crime. Consequently, (Ghafoor Zaman) (S.B.) Hon'ble Mr. Justice Dr. Khurshid Iqbal

v the ASI proceeded on behalf of the State and registered the captioned FIR against unknown culprits.

3.Later, on 01.10.2021, Muhammad Yousaf, the brother of the deceased, got recorded his statement under section 164 Cr.P.C. and nominated the present petitioner for the death of the deceased. Initially, he was refused bail on merit. However, he now seeks his release on bail on the statutory ground of delay in the conclusion of his trial.

4.Arguments heard. Record perused.

5.The record vividly transpires that the petitioner was arrested on 22.06.2022. He was committed to judicial lock up on 24.06.2022. The challan was submitted against him on 25.06.2022. Ever since, he has been detained, with no positive progress in his trial, what to say of its logical conclusion within the statutory period. The prosecution has been unable to produce a single witness in support of the charge against the petitioner. The order sheets of the trial court demonstrate that the prosecution witnesses were issued notices on numerous occasions, but they didn't furn up. Non- bailable warrants of arrest were also issued against the prosecution witnesses, but yielded no fiuitful result. It's wondering that the warrants issued by the trial court against the PWs fell on deaf ears, and neither were those duly executed, nor did the trial judge take any pain to ensure their execution in accordance with law. Rather, on each and every date of hearing, stereotype order sheets issuing notices or warrants against the PWs were repeated, with no coercive measures being taken as prescribed by law, especially those related to enforcing the attendance of witnesses and the consequences (Ghafoor Zaman) (S.8.) Hon'ble Mr. Justice Dr. Khurshid Iqbal

v adumbrated in section 174 PPC for intentionally omitting to attend the Court by those witnesses in response to the process issued. Needless to mention, once a warrant is issued by a competent Court, it remains in force, unless executed or cancelled, as the case may be. However, this was not done by the trial judge, and the order sheets of the tial proceedings clearly depict that the court process was issued in a casual manner, with no follow up at all.

6.In the instant case, most of the order sheets have been handwritten (see order sheets # 40 to 48). Doubtlessly, the Presiding Officers may, in all cases, record order sheets under their own handwriting. However, as was administratively directed by this Court (see p. 1014, Judicial Estacode, Third Edition), the order sheets recorded by the Presiding Officer in his I het handwriting shall bear the seal of the Court and the name of the Presiding Officer with his / her initial or signature. Notwithstanding the directives issued by this Court as aforesaid, the order sheets lack the name of the Presiding Officer and the seal of the Court. Furthermore, order sheet # 14, dated 06.02.2024, does not bear even the initial or signature of the Presiding Officer, let alone his name or the seal of the Court.

7.What the afore-noted facts and circumstances lead this Court to hold is that the trial judge failed to exercise the jurisdiction vested in him by law. This has resulted in a grave miscarriage of justice for the simple reason that the case involves a significant question of life and liberty of a citizen in a murder case, yet the trial judge failed to exercise his discretion in a just and fair manner, obviously contributing to the delay in the conclusion of the trial of the petitioner, which has (Ghafoor Zaman) Hon'ble Mr. Justice Dr. Khurshid Iqbal

v spanned over the statutory period of two years as contained in clause (b) of the third proviso to section 497 (t) Cr.P.C.

8.The jurisprudence that the Supreme Court has developed so far qua the grant ofbail to an accused on the statutory ground of delay in the conclusion of trial is quite rich and clear. For instance, in the case of Saleem Khan v. State (PLD 2020 SC 356), it was ruled that the period of delay in conclusion of the trial is calculated from the date of arrest of an accused person. ln Mehran v. (Ibaid Ullah (PLD 2024 SC 843), it was held that when the prerequisites contained in clause (b) of section 497 (l) Cr.P.C. are fulfilled, then, the accused would be entitled to the grant of bail as a matter of right on the statutory ground of delay in the conclusion of the trial. In Syeda Ayesha Subhani v. The State and others (PLD 2023 SC 648), the Supreme Court observed that as the statutory right to be released on bail on the ground of delay in the conclusion of the trial flows from the constitutional rights to liberty, fair trial, and dignity, guaranteed under Articles 9, l0A, and 14 of the Constitution, the provisions of the third proviso to section 497(l) Cr.P.C. must be fashioned in a manner that is progressive and expansive of these rights of the accused, who is still under trial and whose guilt has not yet been proven, thus, enjoying the presumption of innocence. The Court further observed that the right of an accused to bail due to delay in trial is time based, and denying this right would allow the prosecution to indefinitely delay trials, leaving the accused as under trial prisoners without any recourse. It follows that such a situation offends the constitutionally guaranteed rights of liberty, fair trial, and dignity. In yet another case, (Ghafoor Zaman) (S.B.) Hon'ble Mr. Justice Dr. Khurshid Iqbal

V titled Shakeel Shah v. The State and others (2022 SCMR 1), the Supreme Court held:

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.

g. In addition, there are also a plethora of reported cases where not only the principles governing bail on the statutory ground have been laid down, but bails have also been granted by this Court. These include, but are not limite d to Muhammad ShaJi v. State Q024 YLR 2059 Peshawar), Izhar (Illah v. State (2023 iU,IILD 777 Peshawar), ffid Javed Khan v. State (2022 YLR 1655 Peshawar).

10.Article 189 of the Constitution, in unequivocal terms, commands that any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other courts in Pakistan. Similarly, Anicle 201 of the Constitution states that the decision of this Court, to the extent that it decides a question of law or is based upon or enunciates a principle of law, shall be binding on all courts subordinate to it. The glimpses (Ghafoor Zaman) (S.B.) Hon'ble Mr. Justice Dr. Khurshid Iqbal

V supporting this view can also be seen in the judgment the Supreme Court rendered in Shahtaj Sugar Mills Ltd.

v. Government of Pakistan through Secretary Finance (2024 SCMR 16s6).

11.In this perspective, it would not be out of context to refer to a well known maxim that a judge must wear all the law of the country on the sleeves of his / her robe. While declining bail to the petitioner on the statutory ground of delay in the conclusion of his trial, the trial judge observed:

Perusal of record would suggest that challan in the instant case was received [inl this Court on 03.01.2022 u/s 512 Cr.PC as accused Yas absconding at that time. Accused has been charge sheeted on 13.11.2023 and the case will be concluded in a short span of time. Therefore, petitioner / accused is held not entitled to the concession of post-arrest bail on statutory ground. Ilence, instant bail petition is dismissed.

L2. From the above quoted passage of the order of the triat court, it is clear that it lacks judicial reasoning. The fact that the petitioner has been detained for a continuous period exceeding two years was not attended at all. Rather, it was completely overlooked. The date of receipt of the challan for the initiation of proceedings under section 512 Cr.P.C. has no relevance to the grant or refusal of bail on the statutory ground. The date of framing the charge is also irrelevant, as the period of detention has to be calculated from the date of arrest of the accused. The observation that the trial of the petitioner would be concluded within a short span of time does not justiff the refusal of bail on the statutory ground, especially when not a single PW has been examined so far. The principles enunciated in the above referred judgments were also totally ignored. This (Ghafoor Zaman) (S.B.) Hon'ble Mr. Justice Dr. Khurshid Iqbal

v' suggests that the trial judge, while declining bail to the petitioner, either failed to wear the established law on his sleeve or disregarded it notwithstanding the constitutional command as aforesaid. In the circumstances, I deemed it appropriate to iorru. to the trial judge a stern warning to be careful in future, and conduct the proceedings of his Court in accordance with law.

13.Be that as it may, the petitioner has been detained for a continuous period exceeding two years, but his trial has not been concluded for no fault attributable to him. The prosecution has also failed to show any act or omission on his part that could have contributed to this noticeable delay. The petitioner is neither a previous convict, nor a hardened, desperate, or dangerous criminal. Therefore, he is found entitled to be released on bail as per the third proviso to section 497 Cr.P.C' and the law laid down by the aforesaid rationale.

14.Consequently, this petition is allowed, and the petitioner is admitted to bail, provided he furnishes bail bonds worth Rs.2,00,000/- (Rupees Two Hundred Thousand) with two sureties in the like amount, to the satisfaction of the trial judge, who shall ensure that the sureties are local, reliable, and men of means.

15.The foregoing are the reasons for my short order of even date.

16.Before parting, I may observe that for the prompt and efficient attendance of witnesses in criminal cases, Summonses and Warrants Cells have been established in the districts. However, it appears that these cells are not functioning satisfactorily. The inefficiency of these cells not only impedes the smooth functioning of criminal (Ghafoor Zaman) (S.B.) Hon'ble Mr. Justice Dr. Khurshid Iqbal

aj courts in securing the attendance of witnesses, but also adversely affects the right to a fair trial and the fundamental rights to life and liberty of under trial prisoners in cases that ultimately result in acquittal for want of evidence or failure to establish guilt beyond a reasonable doubt. The casual adjournment of cases due to the absence of witnesses also significantly contributes to the backlog of cases. Therefore, the learned District & Sessions Judges, as Chairpersons of the District Criminal Justice Coordination Committees, are directed to intervene and review the performance of these cells, and take such steps as are warranted under the law. They are further directed to include the review of performance of these cells as an agenda item in the monthly District CJCC meetings. The Additional Registrar of this Bench is directed to communicate a copy of this order to the District & Sessions Judges in the province for compliance.

Announced

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(Ghafoor Zaman) (S.B.) Hon'ble Mr. Justice Dr. Khurshid Iqbal