Muhammad Fazil vs State etc.

Form No. HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT

MULTAN BENCH MULTAN

JUDICIAL DEPARTMENT

Crl. Misc. No.1313-B of 2026

Muhammad Fazil. Vs. The State etc.

Sr. No. of Date of Order with signatures of Judge, and that of parties or order/ order/ counsel, where necessary proceedings proceedings 24.08.2026 Mr. Muhammad Usman Sharif Khosa, Advocate for petitioner.

Mr. Muhammad Abdul Wadood, Additional Prosecutor General with Muhammad Younas SHO.

Mr. Khizar Ali Khan Wadani, Advocate for complainant.

Muhammad Fazil (petitioner) seeks post arrest bail in case FIR No.175 dated 17.04.2015, offences under sections 302, 324, 365-B, 496-A, 337-A(i), 337-F(i), 148, 149, 201 P.P.C. registered at Police Station Saddar, District, Dera Ghazi Khan.

2.Succinctly stated, the case of prosecution as unfolded from the crime report is to the effect that on 17.04.2015 Muhammad Sajjad (complainant) along with his family members was present at his home; that in the meanwhile, at about 04:30 p.m., Muhammad Fazil (petitioner) along with 14 co-accused while riding 05 motorcycles and armed with their respective weapons reached there and started indiscriminate firing; that Muhammad Fazil (petitioner) exhorted to teach a lesson to complainant party and fired a shot from his pistol which hit Muhammad Riaz on his right shin; that thereafter Muhammad Ismail (co-accused) inflicted six successive hatchet blows on the head and face of Muhammad Riaz; that co-accused Hanif and Masso inflicted injuries to complainant with their respective weapons and while leaving the place of occurrence the accused forcibly abducted Mst. Zulaikha Bibi

wife of sabir Hussain and took her to some unknown place, hence, this case.

3.Arguments heard. Record perused.

4.It is discernible from the tentative review of record that instant case is arising out of an incident having occurred on 17.04.2015 at about 04:30 p.m. during which one Muhammad Riaz lost his life after the receipt of multiple injuries, besides that complainant also endured traumas inflicted by the assailants. The burden of committing this crime was pointed towards a bunch of perpetrators comprising upon 15 persons including Muhammad Fazil (petitioner).

5.It is informed by learned law officer that the petitioner applied for his post arrest bail on merits before Honorable Supreme Court of Pakistan, which was dismissed as withdrawn vide order dated 29.04.2025 passed in Crl. P.L.A. No.259/2025. The grant of instant post arrest bail is solely urged on the ground of delay in the conclusion of trial in terms of third proviso of Section 497 Cr.P.C., thus I intend to restrict myself only to this aspect. It is observed from the record that admittedly the petitioner initially remained fugitive from the process of law and was apprehended after a long and noticeable abscondance on 02.01.2024, whereas, the report under section 173 Cr.P.C. to the extent of petitioner was submitted in the Court on 07.05.2024. In pursuance of aforementioned police report, the petitioner was indicted by the trial court on 24.06.2024 and subsequent thereto the case was fixed for the recording of prosecution evidence. It is noticed that though approximately a period of 02-years, 07- months and 23-days has elapsed but till now not even the statement of a single prosecution witness is recorded. I have carefully scanned the report submitted by learned trial judge and record of the case, from which it evinces that the pending proceedings were delayed mainly due to the reasons attributed

to the prosecution and complainant. According to record, the file of the case was placed before the trial court for the recording of prosecution evidence on 04.07.2024, 15.07.2024, and 09.02.2026. Out of the aforementioned dates, on 15.07.2024, accused was not produced from jail, whereas, on 15.08.2024, 29.08.2024, 11.09.2024 and 26.09.2024 the presiding officer was not available. On 10.02.2025, 24.02.2025 and 11.03.2025 the case was adjourned on the joint request of both the sides and except the aforesaid dates no adjournment was sought on behalf of accused/petitioner.

6.The 3rd proviso of section 497 Cr.P.C. unfolds that if the trial of a person accused of having committed an offence punishable with death is not concluded within two years of his detention, he becomes entitled to the concession of post-arrest bail. He can be held disentitled from the relief of post arrest bail under 3rd proviso of section 497 Cr.P.C. only if it is demonstrated that such delay has been caused or occasioned by an act or omission of the accused seeking bail or by any other person acting on his behalf. It manifests from the report of the learned trial court and record that the delay in the conclusion of trial can in no manner be attributed to the petitioner or any person acting on his behalf. This is envisaged in the 4th proviso that the benefit of 3rd proviso of section 497 Cr.P.C will not be extended to a person, who is convicted in an offence punishable with death or imprisonment for life or is a hardened, desperate or dangerous criminal or a person, who is involved in an act of terrorism punishable with death or

imprisonment for life. Needless to mention here that in order to bring the case of an accused within the 4th proviso of section 497 Cr.P.C., the prosecution has to display its cards in reference to some material. In the instant case, no such stance is found present on the record, which may bring the case of the petitioner within the 4th proviso of section 497 Cr.P.C. Reliance in this regard is placed upon the case reported as Noor Agha v. The state and another (2025 SCMR 1679), wherein the Honorable Supreme Court held as under: “The 3rd proviso to subsection (1) of section 497 of the Cr.P.C. governs the statutory right to claim release on bail on the ground of delay in the conclusion of trial. The legislature has explicitly used expression 'shall' in the 3rd proviso and it creates a right in favour of an accused to be released on bail provided the conditions stipulated for claiming such a right have been fulfilled. The 3rd proviso sets out the conditions for being released on bail on the ground of statutory delay. While the 4th proviso has described three distinct exceptions. Even if the conditions specified in the 3rd proviso are met but the case falls in one of the exceptions set out in the 4th proviso, the accused would not be entitled to claim bail on statutory ground as of right. The right would come into existence if the conditions explicitly set out in the 3rd proviso have been met and the exceptions in the 4th proviso are not attracted.

Further reliance is placed upon the case reported as Fayaz Khan v. Mohsin Shah and another (2026 SCMR 1076).

7.In the given circumstances, the provisions of 3rd proviso of Section 497 Cr.P.C. are inflexibly applicable in the instant case and petitioner is entitled to the concession of post arrest bail. While holding so, this Court is enlightened from the cases reported as Zahid Hussain Shah v. The State (PLD 1995 SC 49) and Muhammad Iqbal v. The State (1999 PCr.LJ 948) Further reliance is placed upon the case reported as Muhammad Usman v. The State and another, (2024 SCMR 28), wherein the Honorable Supreme Court of Pakistan granted bail to an accused on the ground of statutory delay in the conclusion of trial with following observations: “On the touchstone of the principles highlighted herein above, a right has accrued in favour of the petitioner

under the third proviso of section 497(1) of the Cr.P.C., to be released on bail because the conditions have been met and the prosecution was not able to persuade us that the delay in conclusion of trial can be attributed to the petitioner nor that the mischief contemplated under the fourth proviso is attracted.”

8.The dismissal of instant post arrest bail is vociferously urged by the learned Additional Prosecutor General on the ground that noticeable abscondance is attributed to the petitioner. Suffice it to say in this regard that if the case of an accused comes within the ambit of further inquiry, his previous abscondance cannot be used as hurdle for the grant of post arrest bail. Reliance in this regard is placed upon the case reported as Muhammad Aslam v. The State and others (2016 SCMR 1520), an extract of which is reproduced hereunder: “It may be true that a person absconding after an occurrence and declared as a Proclaimed Offender may lose his claim to exercise of discretion in his favour by a court of law on the basis of propriety but at the same time it is equally true that an accused person the case against whom calls for further inquiry is to be admitted to bail as a matter of right. It goes without saying that whenever a question of propriety is confronted with a question of right the latter must prevail.”

Further reliance is place upon the case reported as Hidayat Khan v. The State and another (2023 SCMR 172).

9.For what has been discussed above, instant petition is allowed and petitioner who is found incarcerated since 02.01.2024 and that too without any material progress in trial is ordered to be released on bail subject to his furnishing bail bonds in the sum of Rs.10,00,000/- with two sureties in the like amount to the satisfaction of the learned trial court.

(SYED FARHAD ALI SHAH)

JUDGE

Approved for reporting.

JUDGE

Umer