Sadiq etc vs Muhammad Afsar etc.

Judgment Sheet

IN THE PESHAWAR HIGH COURT,

ABBOTTABAD BENCH

JUDICIAL DEPARTMENT

Cr. M No. 48-A of 2012

JUDGMENT

Date of hearing.....................09/04/2012............................................. Petitioner...(Sadiq etc) by Mr. Mushtaq Ali Tahirkheli, Advocate............. Respondent(Muhammad Afsar etc) by Mr. Muhammad Nawaz Khan Swati, AAG and Qazi Muhammad Arshad, Advocate......

YAHYA AFRIDI, J:- Sadiq and his two sons Khalid and Asif seek their post arrest bail on statutory ground in case FIR No. 124 for offences chargeable under sections 302/324/34 of Pakistan Penal Code, 1860 (“PPC”) registered on 07.12.2004 in Police Station Bagnotar, Abbottabad (“FIR”).

2.This is the third round of the petitioners seeking their post arrest bail before this Court.

Earlier, their petition for post arrest bail was turned down on merit and thereafter vide order dated 22.08.2011 bail petition filed on the ground of statutory delay was also turned down by this Court.

Aggrieved thereof, the petitioners agitated the matter before the august Supreme Court of Pakistan, which

was vide order dated 2.12.2011 remanded back to the trial Court for a decision afresh on the bail application of the petitioners. The worthy direction so rendered by the apex Court were as under:- “Be that as it may, as the learned counsel has himself opted for the remand of the case, therefore, without prejudice to the plea of the State, we are inclined to send it back to the trial Court for reconsidering the bail application in view of the assertions made by the learned counsel before us as well as taking into consideration as to whether in presence of evidence so far recorded the petitioners are entitled to the grant of bail notwithstanding the stage of the trial and also for taking into consideration limitations prescribed in the last proviso, referred to above, with regard to the disentitlement of the accused for release on bail on the ground of statutory period if they have been found hardened, desperate and dangerous criminals. However, the learned trial Court may take necessary steps for disposal of the case expeditiously.”

3.The trial Court vide order dated 18.1.2012 was pleased to dismiss the petition for post arrest bail of the petitioner holding that;

“I am therefore, compelled to observe that the delay was deliberate and meant to achieve a specific object...... No cooperation from the defence side is forthcoming......

The accused in custody physically assaulted the police officials as a result of which case FIR No.71 U/S 325/353/186/34 was lodged against them in police station City. The accused may not be hardened criminal but from what they had manifested, they can be easily termed as desperate and dangerous for it takes extra courage to launch physical assault on police officials on duty.”

Hence, the present petition.

4.The ground of statutory delay for grant of post arrest bail has been provided under section 497 of Criminal Procedure Code, 1898 (“Cr.P.C”), which provides that;

“497. When bail may be taken in cases of nonbailable offence. (1) When any person accused of non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years.

Provided further that the Court shall, except where it is of opinion that the delay in the trial of the accused has been occasioned by an act or omission

of the accused or any other person acting on his behalf or in exercise of any right or privilege under any law for the time being in force, direct that any person shall be released on bail—

(B)who, being accused of an offence punishable with death, has been detained for such offence for a continuous period exceeding two years and whose trial for such offence has not concluded.

Provided further that the provisions of 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 imprisonment for life.”

5.The issue of statutory delay as a ground for grant of post arrest bail has been dilated upon by the apex Court in numerous judgments. The landmark judgment being Zahid Hussain Shah Vs. the State (PLD 1995 SC 49), wherein the apex Court following the 'ratio decidendi' laid down in Nazir Hussain Vs.

Zia-ul-Haq, (1983 SCMR 72) and Saleh Muhammad Vs. The State (1983 SCMR 341), held that;

‘The right of an accused to be enlarged on bail under the third proviso to section 497 (1) Cr.P.C is a statutory

right which cannot be denied under the discretionary power of the Court to grant bail.’

However, the said right was further dilated upon by the apex Court in Sher Ali Vs. The State (1998 SCMR 190), wherein, the apex Court considered the said right of an accused was not an ‘absolute’, but a ‘conditional right’. The condition precedent being that; the delay in the trial of an accused beyond two years was not occasioned by any act or omission of the accused or any other person acting on his behalf and that the petitioner was not in the opinion of the Court a hardened, desperate or dangerous criminal or involved in terrorism.

As far as the first condition relating to delay of the trial, beyond a continuous period of two years, the apex Court held that;

‘However in our view, simplicitor an act of abscondence on the part of an accused person will not disentitle him to claim bail on the ground of statutory delay, which right accrues to him after he has been arrested and the statutory right mentioned in clause (a) or clause (b) of aforementioned third proviso, as the case may be, has expired.

However, if the act of

abscondence has attributed towards delay of trial, in that even an accused person would not be entitled to seek bail on the ground of statutory delay.”

(emphasis provided)

Now considering the ‘ratio decidendi’ laid down in the aforementioned case by the apex Court and applying the same to the facts of the present case, it come to light that the petitioners had not only absconded but also contributed in delaying the conclusion of the trial. In criminal cases, mathematical calculation of time should not be considered but infact, the general conduct of the accused has to be considered, as a whole. In the present case, not only is there abscondence on the part of the petitioners, but infact, after their arrest marked silence over a year on their part regarding one of the petitioner being juvenile further delayed the conclusion of the trial. Hence, the petitioners cannot take advantage of the statutory delay, when their own conduct, even after their appearance before the trial Court cannot be totally ignored. Thus, this Court finds that the petitioners are not entitled to the grant of post arrest bail on the ground of statutory delay.

6.As this Court has already considered that the petitioners do not fulfill the first condition precedent for grant of statutory bail, it would not be appropriate for this Court, at this stage, to render any findings as to the second condition precedent being whether the petitioners are in view of the tentative assessment of the evidence on record are hardened, desperate and dangerous criminal. However, it would be fair and appropriate to state that the case FIR No.71, which become the reason for the Sessions to regard the petitioners, “desperate” and ‘dangerous” has infact been concluded in the acquittal of the petitioners.

7.Accordingly, for the reasons stated

hereinabove, this petition being devoid of merits is dismissed.

The learned AAG has informed this Court that the prosecution evidence is complete, so are the statements of two accused under Section 342 Cr.P.C duly been recorded, while that of the third is awaited for the last two years but for the present bail petitions.

The trial Court is directed to conclude the trial within one month, if not earlier, from the receipt of this order, and submit weekly report regarding the

progress of the case to the worthy Additional Registrar of this Court.

Parties are to appear before the trial Court on 14th April, 2012. The office is directed to immediately send the record of the case so as to reach the trial Court before the date fixed.

Announced. JUDGE

/*M.S.A*/