Ghulam Rasool vs State etc.

Form No: HCJD/C-121

Order Sheet

IN THE LAHORE HIGH COURT LAHORE

MULTAN BENCH, MULTAN

JUDICIAL DEPARTMENT

Criminal Misc. No. 3529-B of 2026 (Ghulam Rasool vs The State and another) Criminal Misc. No. 3737-B of 2026 (Muhammad Jahangir vs The State and another)

ORDER

S.No. of Date of Order with signatures of Judge, and that of parties or order/ order/ counsel, where necessary proceeding proceeding

24.06.2026 Mr. Muhammad Khalil Ullah, Advocate for the petitioner Ghulam Rasool.

Ch.Abdul Hafeez, Advocate for the petitioner Muhammad Jahangir.

Mr. Hassan Mehmood Khan Tareen, Additional Prosecutor General, with Husnain Inspector. Mr. Abdul Khaliq Dogar, Advocate for the informant.

Ghulam Rasool and Muhammad Jahangir (collectively referred to as the “petitioners”), have filed these petitions, under Section 497 of the Code of Criminal Procedure, 1898 (“Cr.P.C”), for their release on post-arrest bail in case FIR No. 211/2025, dated 15.03.2025, under Sections 324, 109, 148, and 149 of the Pakistan Penal Code, 1860 (“PPC”), registered with police station Sahuka, Vehari (“FIR”). The petitioners had earlier sought the same relief before the learned Additional Sessions Judge, Burewala, who, vide order dated 30.04.2026, declined their prayer for post-arrest bail.

2.Since both these petitions arise out of the same FIR and involve a common question of law, they are being decided through this common order.

3.At the outset, and before delving into the

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substratum of the legal issues involved, it is necessary to recapitulate the facts constituting the backdrop of the instant petitions. Succinctly, Muhammad Saeed (“informant”) got the FIR registered against the petitioners and their co- accused, namely Saleem, Suleman, and Sobay Khan, on the allegations of, inter alia, forming an unlawful assembly and launching a murderous assault, which resulted in injuries to Muhammad Sajjad and Muhammad Afzal, relatives of the informant. Pursuant to the allegations levelled in the FIR, the petitioners were arrested on 17.03.2025 and were formally indicted on 24.07.2025. Since then, the trial has not concluded. Hence, the instant petitions seek the concession of post-arrest bail on the ground of statutory delay in conclusion of trial.

4.Hearkened; record perused.

5.It is an undisputed position that these are the second post-arrest bail petitions, wherein the petitioners have primarily sought the concession of bail on the ground of statutory delay in conclusion of trial under the third proviso to Section 497(1), Cr.P.C. The record reflects that the offences with which the petitioners have been charged do not entail the punishment of death. In such circumstances, the petitioners have to demonstrate that they had been continuously detained for a duration of 1 year since their initial detention/arrest,1 which duration, according to the judgment of “Mehran v. Ubaid Ullah”,2 is to be calculated from the date of the arrest3. Furthermore, the Honourable Supreme Court, in “Shakeel Shah v. The See “Adnan Shafai vs The State and another” (2024 SCMR 1543), “Muhammad Umer Shahzad vs The State and others” (2023 SCMR 1450), “Syeda Ayesha Subhani vs The State” (PLD 2023 SC 648), “Nadeem Samson vs The State” (PLD 2022 SC 112) and “Shakeel Shah vs The State” (2022 SCMR 1)

PLD 2024 SC 843

Also see “Adnan Shafai vs The State and another” (2024 SCMR 1543), “Syeda Ayesha Subhani vs The State” (PLD 2023 SC 648), “Shakeel Shah vs The State” (2022 SCMR 1), and “Saleem Khan v. The State” (PLD 2020 SC 356)

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State”,4 held that “The adjournments mentioned in the impugned order are after the lapse of the first year of detention of the accused and are therefore of little significance”. The purpose and objective of the provision is to ensure that the trial of an accused is conducted expeditiously5 and once the duration stipulated therein has lapsed whilst trial has not concluded, the statutory right to be released on bail ripens in favour of the accused.6 This statutory right is time-based,7 and the same cannot be denied because said right has not been left to the discretion of the Court; rather, its accrual is subject to the fulfillment of the conditions mentioned therein.8 The statutory right to be released on bail on the ground of delay in the conclusion of the trial flows from the fundamental rights as enshrined under Articles 9, 10A and 14 of the Constitution of the Islamic Republic of Pakistan 1973 (“Constitution”).9 As such, denying this recurring right would effectively confer upon the prosecution an unfettered licence to delay the conclusion of the trial for an indefinite period following the dismissal of the first post-arrest bail petition on merits. The inevitable consequence would be that the accused remains confined as an undertrial prisoner for an indeterminate duration, entirely at the mercy of the prosecution as to when, if at all, it chooses to conclude the trial. Such a consequence would be wholly antithetical to the constitutional scheme and would reduce to a mockery the fundamental rights to liberty, fair trial, and dignity guaranteed to every accused under the Constitution.10

2022 SCMR 1

See “Nadeem Samson vs The State” (PLD 2022 SC 112) See “Shakeel Shah vs The State” (2022 SCMR 1) See “Syeda Ayesha Subhani vs The State” (PLD 2023 SC 648) See “Muhammad Usman vs The State” (2024 SCMR 28) See “Syeda Ayesha Subhani vs The State” (PLD 2023 SC 648) and “Shakeel Shah vs The State”

(2022 SCMR 1)

See “Syeda Ayesha Subhani vs The State” (PLD 2023 SC 648)

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6.Be that as it may, there are two exceptions to the general rule laid down by the third proviso, both of which are co-existent qua their application; hence, the imports of the same could not be constructed in isolation, rather they have to be interpreted conjointly.11 The first is set out in the third proviso itself, namely, that the delay in the trial has been occasioned by an act or omission of the accused or any other person acting on his behalf.12 It follows that where, after perusal of the order sheet, the Court comes to the deduction that the delay in the conclusion of trial has been occasioned due to acts or omissions on the part of the accused, or any person acting on his behalf, to hinder the timely decision of the trial through a visibly orchestrated effort, the Court can refuse to enlarge the accused on bail in terms of the third proviso.13 At the same time, the Courts must remain conscious of the fact that such exercise is not a mere mathematical exercise of adjournments sought, but rather, the prosecution must demonstrate, on the basis of the record, that there existed 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.14

7.The second exception is stipulated in the fourth proviso to Section 497, Cr.P.C, i.e., which stipulates that the foregoing proviso 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 is accused of an act of terrorism punishable with death or See “Ali Akbar v. The State and other” (2020 SCMR 1225) See “Muhammad Usman vs The State and another” (2024 SCMR 28) and “Shakeel Shah vs The State” (2022 SCMR 1)

See “Muhammad Ali vs The State and another” (2023 SCMR 1131) and “Shakeel Shah vs The State” (2022 SCMR 1)

See “Shakeel Shah vs The State” (2022 SCMR 1)

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imprisonment for life.15 Admittedly, the fourth proviso commences with the phraseology, “Provided further that the provisions of the foregoing proviso shall not”. In other words, the bearing of previous conviction is only a matter of consideration in instances where grant of bail is sought under the third proviso, and not otherwise.16 Likewise, when bail is sought under the said proviso, conviction simpliciter does not de-bar the Court from enlarging an accused on bail, unless the prosecution succeeds in bringing the case within the four corners of the fourth proviso by showing that the previous conviction was for an offence punishable with death or imprisonment for life.17 So far as the expression “hardened, desperate or dangerous criminal”, as employed in the fourth proviso are concerned, the same were explained by the Honorable Supreme Court in “Shakeel Shah vs. The State”18 to refer towards a person who is likely to seriously injure and hurt others without regard to the consequences of his violent act and can pose a serious threat to the society if set free on bail, and such tentative opinion as to the character of the accused is to be formed by the Court upon careful examination of the facts and circumstances of each case.19 Consequently, for determining whether the fourth proviso is applicable, the Court is to formulate an opinion, on the basis of the nature of the offence involved,20 its effects on the victims or the society at large,21 the role attributed to the accused,22 the manner in See “Moundarr and others vs The State” (PLD 1990 SC 934 (5-MB)) See “Shehzad vs The State” (PLJ 2024 Cr.C 79 Lahore), “Nadeem Aslam vs The State and another” (2019 YLR 415 Lahore) and “Muhammad Abid Farooq vs The State and another” (2015 PCr.LJ 224 Islamabad)

See “Amin vs The State” (1998 PCr.LJ 1677 Karachi)

2022 SCMR 1

Also see “Allah Wasaya vs The State and others” (PLD 2022 SC 541) See “Hussain vs The State” (1991 PCr.LJ 26 Karachi) and “Sultan Ali and 24 others vs The State” (1999 MLD 454 Lahore (DB))

See “Omair Ahmed Siddiqui vs The State” (1996 PCr.LJ 22 Karachi) See “Ghulam Rasool and 3 others vs The State” (1998 MLD 1344 Shariat Court (AJ&K))

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which the offence was committed23 and the conduct of the accused.24

8.With the principles of law, as enunciated by the superior Courts, taken into consideration, the material available on record was perused. It is discernible that the petitioners were arrested on 17.03.2025, and despite the lapse of 1 year, the conclusion of the criminal trial against them is not in sight. Accordingly, the order sheet of the proceedings conducted by the learned trial Court have been perused to evaluate whether any delay was occasioned by the petitioners. The record reveals that, after the arrest of the petitioners, an interim challan/police report under Section 173, Cr.P.C., was submitted before the learned trial Court on 20.06.2025. Upon receipt thereof, the learned trial Court supplied copies of the relevant documents to the petitioners and thereafter formally indicted them on 24.07.2025. Thereafter, the case was adjourned either due to the non- attendance of prosecution witnesses, for whom the learned trial Court had even issued non-bailable warrants of arrest, or on account of the absence of co-accused Saleem and Suleman on 13.04.2026 and of co-accused Sobay Khan and Abdul Majeed on 27.04.2026. Likewise, the case was adjourned on 10.01.2026 because the attendance of co- accused Saleem had been dispensed with, and again on 02.03.2026 due to the dispensation of attendance of co- accused Suleman. In these series of events, the petitioners were also not produced from jail on certain dates due to the prevailing law and order situation, a circumstance for which they cannot be held responsible or faulted.

9.When confronted with the above situation, the learned Additional Prosecutor General as well as the learned See “Muhammad Asif vs The State” (PLD 1996 Karachi 385) and “Shahnawaz and others vs The State” (2000 PCr.LJ 630 Karachi (DB))

See “Anwar Beg vs The State” (1999 PCr.LJ 1450 Lahore)

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counsel for the informant contended that, notwithstanding the availability of the prosecution witnesses, their evidence could not be recorded because the co-accused of the petitioners had failed to appear before the learned trial Court on the relevant dates of hearing. This contention, as well as the general practice adopted by the learned trial Courts of deferring the recording of prosecution evidence merely on account of absence of one or more co-accused is founded upon a misconstruction of Section 353, Cr.P.C. The general rule of recording evidence, as provided in the Section ibid, is subject to the opening clause, “Except as otherwise expressly provided”. Considering the established principle of statutory interpretation that no word employed by the Legislature is to be treated as redundancy or superfluous,25 the mandate requiring evidence to be recorded in the presence of the accused ceases to apply once a statutory provision carving out the exception to this general rule is triggered. Reliance is placed on “Zulfiqar Ali Bhutto v. The State”,26 wherein the Honorable Supreme Court held that: “But this general rule stated in section 353 of the Code is subject to the opening clause‐"Except as otherwise expressly provided", and it ceases to be applicable in the presence of an express provision to the contrary in the Code.”

There are two exceptions of the general rule of Section 353, Cr.P.C, namely, Sections 205 and 540-A, Cr.P.C. Under Section 205(1), Cr.P.C, whenever a Magistrate issues a summons, he may, for reasons to be recorded, dispense with the personal attendance of the accused, and permit him to appear through his pleader. Similarly, Section 540-A, Cr.P.C, empowers a Court to dispense with the personal attendance of the accused, provided that he is represented by See “Searle IV Solution (Pvt.) Ltd. vs Federation of Pakistan” (2018 SCMR 1444) and “Collector of Sales Tax and Central Excise (Enforcement) and another vs Messrs Mega Tech (Pvt.) Ltd” (2005 PTD

1933 SC = 2005 SCMR 1166)

PLD 1979 SC 53 at P. 188

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a pleader. When all three provisions are read conjointly, as a harmonious whole,27 it becomes evident that the underlying object behind the enactment of Section 353, Cr.P.C, is to ensure that no prejudice is caused to an accused or co- accused by recording evidence in the absence, thereby safeguarding his right to a fair trial.28 However, this does not imply that the learned trial Court cannot record evidence of witnesses in the presence of the pleader of an accused in situations where the presence of said co-accused standing trial before it has been dispensed with by invoking either Section 205 or Section 540-A, Cr.P.C. In such circumstances, the presence of the pleader sufficiently satisfies the statutory requirement, and the trial may lawfully proceed. In the presence case, the personal attendance of co-accused Suleman was dispensed with on 10.01.2026, whereas that of co-accused Saleem was dispensed on 02.03.2026. Consequently, there existed no legal impediment or statutory embargo preventing the learned trial Court from recording the prosecution evidence on the said dates of hearings, especially considering that the pleaders of said co-accused were present.

10.Considering the deliberation made above, the petitioners cannot be saddled with the delay on the said dates. To this end, it is trite that the delays caused by the co- accused are not, as a matter of course, attributable to another accused. For such delay to constitute a valid ground for declining the concession of bail under the third proviso, the prosecution must demonstrate, on the basis of undisputed material available on record, that the accused seeking bail was complicit in the acts or omissions of the co-accused persons part, or any person acting on behalf of co-accused,29 See “Kamaluddin Qureshi vs Ali International Co.” (2009 CLD 784 SC = PLD 2009 SC 367) See “Agha Shariq Raza vs The State” (2025 YLR 808 Sindh) See “Muhammad Usman vs The State” (2024 SCMR 28)

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and, as enunciated above, the absence of co-accused was in furtherance of a concerted effort to delay the trial without sufficient cause, particularly on crucial hearings, such as when the case was fixed for recording of evidence and the witnesses were present.30 Giving consideration to the above, since there is nothing on record to effectively demonstrate that the petitioners were complicit with their co-accused, or acted in aid thereof, the delay caused by the latter cannot hang as a sword of Damocles over the head of the petitioners for the purpose of determination of bail under the third proviso.

11.In totality, a careful perusal of the above mentioned order sheets, commencing from the period commencing from the date of arrest of the petitioners, until the date of the filing these petitions, do not reflect any design, pattern, or concerted effort on the part of the petitioners to delay the conclusion of trial; as a consequence thereof, because the prerequisites of the third proviso to subsection (1) of Section 497, Cr.P.C, are fulfilled, and in the absence of either of the exceptions being applicable, the petitioners are entitled to the grant of post-arrest bail as a matter of right on the statutory ground of delay in the conclusion of trial.31 In addition thereto, it has also been consistently held by the Honorable Supreme Court that where a case, on such statutory delay in conclusion of trial, is made out, then bail should not be refused on hyper technical grounds because a statutory right cannot be denied under the discretionary power of the Court to grant bail. Reliance is placed on the ratio decidendi laid down by the Honorable Supreme Court in cases of “Zahid Hussain Shah See “Shakeel Shah vs The State” (2022 SCMR 1) See “Muhammad Usman vs The State” (2024 SCMR 28), “Adnan Shafai vs The State and another” (2024 SCMR 1543), “Muhammad Umer Shahzad vs The State and others” (2023 SCMR 1450), “Syeda Ayesha Subhani vs The State” (PLD 2023 SC 648), “Nadeem Samson vs The State” (PLD 2022 SC 112) and “Shakeel Shah vs The State” (2022 SCMR 1)

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v. The State”.32

12.In light of the above, these petitions are allowed, and the petitioners, namely, Ghulam Rasool and Muhammad Jahagir, are granted post-arrest bail, subject to furnishing bail bonds of PKR. 1,000,000/- (Rupees One Million Only) with one surety, each, in the like amount to the satisfaction of the learned trial Court. The learned trial Court is further directed to conclude the trial of the petitioners expeditiously, on merits of the evidence produced before it, within two (2) months from the receipt of this order.

13.Before parting with this order, it is clarified that the observations made herein are purely tentative in nature and have been recorded solely for the purpose of deciding the instant petition. They shall neither prejudice nor influence the trial proceedings in any manner, and the learned trial Court shall decide and conclude the case independently, strictly on the basis of the evidence adduced before it and in accordance with law.

(MUHAMMAD JAWAD ZAFAR)

JUDGE

Nadeem/*

Approved for Reporting

JUDGE

PLD 1995 SC 49