2017 PLP 92 (YLRN)

SHAHID HAMEED DAR, J.

Shahzad Akhtar alias Sajjad (petitioner) is, in fact, real brother of the complainant's wife, who allegedly outwitted his behnoi Muhammad Saleem Shad Qureshi advocate and cleverly received a huge amount of money i.e. Rs.1,50,00,000/- at the rate of 4% & 5% profit per month from him against a couple of pro-notes and an indemnity bond, which he allegedly executed in his favour on 1.11.2011 and 19.11.2011. It is learnt from the text of FIR No.68/14, dated 20.1.2014, under section 489-F, P.P.C., registered at Police Station Sanda Lahore that he (petitioner) disappeared after he failed to disburse the settled amount of profit to the tender or repay the debt to him; he was traced after hectic efforts by the creditor (complainant), whom he issued a cheque of Rs.10,00,000/-, which was presented for encashment by him but it was bounced by the bank due to insufficient funds.

2. The petitioner was arrested in this case on 6.12.2014 and he has been in jail since then. His post-arrest bail application (Crl.Misc.No.4086-B/2015), on merits, was dismissed by this court on 23.6.2015. Being in jail for more than a year, he seeks for his release on bail on statutory ground of delay in conclusion of his trial. His first bail application (Crl.Misc.No.2340-B/2016) in this context was dismissed as withdrawn on 29.3.2016, with the observation, "On reconsideration, learned counsel for the petitioner wishes to withdraw this petition".

3. Learned counsel for the petitioner has submitted that the petitioner did not occasion delay in conclusion of his trial and it was all the way, fault of the prosecution, not to have concluded the trial so far; the petitioner's case is not hit by any of the embargos of the 4th or 5th proviso to section 497(1), Cr.P.C.; lastly contended that the petitioner has already been in jail for more than one and a half years, for an offence, which is punishable by three years imprisonment.

4. On the other hand, learned Deputy Prosecutor General Punjab assisted by learned counsel for the complainant has vehemently opposed this application by contending that delay in conclusion of the petitioner's trial is solely attributable to him, as he sought repeated adjournments on various pretext, so as to protract proceedings of his trial; the petitioner is a habitual offender, having been involved in nine other cases of alike nature, whereby he deprived his behnoi, the complainant of this case, of Rs.1,50,00,000/- through his devilish faculties; the petitioner's earlier application on the subject was dismissed as withdrawn, therefore, he needed a fresh ground for his release on bail, which was not available to him; lastly, contended that the petitioner's case is struck by the bar, as contained in the 4th proviso to section 497(1), Cr.P.C., therefore, he may not be granted the relief prayed for. Relies on Ashiq Hussain and 3 others v. The State (1989 SCMR 1580), Hassan v. The State PLD 1996 Kar. 487, Farooq Mengal v. The State through A.G. Sindh, Karachi (2007 SCMR 404), Khuda Bakhsh v. The State (2008 PCr.LJ 708), Shameel Ahmad v. The State (2009 SCMR 174) and Nazir Ahmad and another v. The State and others (PLD 2014 SC 241).

5. After hearing the learned counsel for the parties and perusing the record, it is observed that the petitioner was arrested in this case on 6.12.2014 and he has continuously been in jail since then. His trial has not concluded as yet. Learned counsel for the petitioner has submitted a copy of the order-sheet qua trial of the petitioner, which showed that the trial court had been issuing non-bailable warrants of arrest of some of the prosecution witnesses since 14.10.2015, so as to procure their presence but to no avail. It is certainly so, that the accused-petitioner sought some adjournments in this case, but the prosecution did it very largely, as is manifest from thirty seven (37) interlocutory orders of the learned trial court, whereby non-bailable warrants of arrest had been issued against some of the prosecution witnesses, but it did not work. Besides, on two occasions, the trial court issued bailable warrants of arrest of the said witnesses.

6. So far as involvement of the petitioner in nine other cases of alike nature is concerned, suffice it to say, all had been got lodged by one and the same person, who is the complainant of this case as well. There exists nothing to suggest that the petitioner is a hardened, desperate or dangerous criminal. He has never been involved in an act of terrorism punishable under the Anti-Terrorism Act, 1997 and the allied laws. He has been languishing in jail for more than eighteen months and, of course, cannot be left to die in jail only to satisfy the grudge of the complainant. Keeping him continuously incarcerated would amount to punishing him prematurely, which is not the aim or object of the law. The judgments relied on by the learned counsel for the complainant hardly fit in with the attending circumstances of this case being distinctive on merits and facts.

7. Therefore, this application is allowed and the petitioner is admitted to post-arrest bail subject to furnishing bail bonds in the sum of Rs.2,00,000/- (two lacs) with one surety in the like amount to the satisfaction of the learned trial court. WA/S-67/L Bail granted.