IN THE HIGH COURT OF SINDH

AT LARKANA

 

 

Criminal Bail Application No. S-603 of 2021

 

Abdul Sattar Jalbani

vs.

The State

 

For the Applicant                       :         Mr. Habibullah G. Ghouri           Advocate

 

For the Prosecution / State        :         Mr. Abdul Ghaffar Kalhoro

                                                          Assistant Prosecutor General

 

For the Complainant                  :         Inspector Kazi Sharafuddin,

                                                          C.O ACE Larkana

 

Date of hearing                         :         11.02.2022

 

Date of announcement              :         11.02.2022

 

ORDER

 

Agha Faisal, J.     The applicant seeks post-arrest bail, in respect of F.I.R. No. 03 of 2013, registered on 01.11.2012 before P.S ACE Larkana, pertaining to offence/s under Section/s 409,467,468,471-A,34 P.P.C, R/W Sec: 5(2), Act-II of 1947, on the solitary ground of statutory delay.

 

2.            After considering the submissions of the learned counsel and sifting[1] through the material placed before the court, for and against the applicant, reproduction whereof is eschewed herein[2], it is observed as follows:

 

a.    The case of the applicant is that he has remained incarcerated since 04.11.2020 and despite the charge having been framed in 2015 no significant progress has taken place in the trial, therefore, keeping the applicant behind bars is against the principles of justice.

 

b.    Learned counsel for the applicant pleaded entitlement to the concession of bail on the premise of statutory delay, pursuant to the 3rd proviso of Section 497 Cr.P.C, stipulating that continued incarceration beyond one year, under the relevant circumstances, entitles the applicant to the benefit of bail on the ground of statutory delay, demonstrably not occasioned on account of the applicant.

 

c.    Learned A.P.G, while opposing the bail on the merits of the case, admits the presence and applicability of statutory delay.

 

d.    The applicant has admittedly been incarcerated for more than one year and the said time pervades even if the four adjournments attributed to the applicant, during the tenancy of the entire trial, are factored into account. No argument has been articulated requiring the applicant’s presence for further investigation at this stage or denoting him as a flight risk; no apprehension has been expressed with regard to tampering of evidence by the applicant or repeating the offence/s, if enlarged on bail; hence, no cause is apparent presently warranting the continued incarceration of the applicant pendente lite.

 

e.    The enshrined principles of bail on the ground of statutory delay have been recently distilled by Mansoor Ali Shah J in Nadeem Samson[3] and it has been illumined as follows:

 

"(i) The purpose and object of the 3rd proviso to Section 497(1)CrPC is to ensure that the trial of an accused is conducted and concluded expeditiously, and that the pre-conviction detention of an accused does not extend beyond the period of two years in cases involving an offence punishable with death, or one year in other cases;

 

(ii) The period of one year or two years, as the case may be, for the conclusion of the trial begins from the date of the detention of the accused in the case, not from the date when the charge is framed and trial commenced;

 

(iii) A statutory right to be released on bail accrues in favour of the accused if his trial is not concluded within the specified period, i.e., exceeding one year or two years as the case may be, from the date of his detention;

 

(iv) This statutory right of the accused to be released on bail is, however, subject to two exceptions: one is embodied in the 3rd proviso itself and the second is provided in the 4th proviso, which are: (a) the delay in conclusion of the trial is occasioned by an act or omission of the accused or by any other person acting on his behalf, and (b) the accused is a convicted offender for an offence punishable with death or imprisonment for life, or is in the opinion of the court a hardened, desperate or dangerous criminal, or is accused of an act of terrorism punishable with death or imprisonment for life.

 

(v) The act or omission on the part of the accused to delay the timely conclusion of the trial must be the result of a visible concerted effort orchestrated by the accused. Merely some adjournments sought by the counsel for the accused cannot be counted as an act or omission on behalf of the accused to delay the conclusion of the trial, unless the adjournments are sought without any sufficient cause on crucial hearings, i.e., the hearings fixed for examination or cross-examination of the prosecution witnesses, or the adjournments are repetitive reflecting a design or pattern to consciously delay the conclusion of the trial; and

 

(vi) The phrase “a hardened, desperate or dangerous criminal” denotes an accused who is likely to seriously injure and hurt others without caring for the consequences of his violent act and will pose a serious threat to the society if set free on bail. Such tentative finding as to character of the accused must be based upon careful examination of the facts and circumstances of the case, supported by sufficient incriminating material."

 

f.     Upon tentative[4] assessment of the material[5] before this Court, subjected to the anvil set forth by the august Supreme Court in Nadeem Samson, it is manifest that a case of statutory delay[6] is prima facie made out within the remit of Section 497 Cr.P.C.

 

g.   Therefore, it is the assessment of this Court that the learned counsel for the applicant has made out a fit case for grant of post arrest bail, hence, the applicant is hereby admitted to bail, subject to furnishing solvent surety in the sum of Rs.100,000/- (Rupees one hundred thousand only) and a personal recognizance bond, in the like amount, to the satisfaction of the learned trial Court. This bail application is disposed of accordingly.

 

h.    It is considered pertinent to record that the observations herein are of tentative nature and shall not influence and / or prejudice the case of either party at trial.

 

 

 

JUDGE


[1] Shoaib Mahmood Butt vs. Iftikhar Ul Haq & Others reported as 1996 SCMR 1845.

[2] Chairman NAB vs. Mian Muhammad Nawaz Sharif & Others reported as PLD 2019 Supreme Court 445; Muhammad Shakeel vs. The State & Others reported as PLD 2014 Supreme Court 458.

[3] Nadeem Samson vs. The State (CrlP 1016-L of 2021); judgment dated 06.01.2022.

[4] Shahzaman vs. The State reported as PLD 1994 Supreme Court 65.

[5] Asif Ayub vs. The State reported as 2010 SCMR 1735.

[6] Shabeer vs. The State reported as 2012 SCMR 353; Taj Muhammad & Another vs. The State reported as 2011 PCrLJ 1910.