2022 PLP 177 (YLRN)

SYED ARSHAD ALI, J.

Petitioner Aqib Ali son of Imtiaz Ali, after refusing bail by the learned trial Court in case FIR No. 107/19 dated 14.08.2019 under section 9-C CNSA registered at Police Station ANF, Peshawar had approached this Court through Cr.M./B.A. No. 4394-P/2021, however, the said petition was disposed of vide order dated 24.12.2021 with direction to the learned trial Court to conclude the trial within one month positively. As trial of the present petitioner had not been concluded with the given time, therefore, the present petitioner has filed the instant bail petition.

2. As per contents of FIR, the ANF staff arrested the present petitioner and recovered 4.975 grams Ice/amphetamine from his bag; hence, the instant FIR.

3. Arguments heard and record perused.

4. It is evident from record that indeed, the present petitioner seeks bail on statutory ground of delay. The present petitioner was arrested on 14.08.2019 and since then he is facing trial before the learned trial Court. When the present petitioner had approached this Court for his release on bail, the said petition was disposed of on the request of learned counsel for the petitioner that direction be issued to the learned trial Court for expeditious trial. Therefore, through the order dated 24.12.2021 directions were issued to the learned trial Court to conclude trial of the present petitioner within a month. Since then, despite that the trial Court has issued non-bailable warrant of arrest against the prosecution witnesses, no progress could be made in the trial of the present petitioner. On 03.02.2022 the prosecution has then submitted a supplementary challan under section 3/4 of Anti-Money Laundering Act, 2010 against the present petitioner. This would obviously mean that once again the charge would be reframed and the prosecution witnesses would be thus called to appear in Court for recording their deposition. It is not understandable that when the present petitioner was arrested on 14.08.2019 what made investigation to wait till 03.02.2022 to file a supplementary challan under Anti-Money Laundering Act, 2010.

5. Granted; that the law by now is settled that even in case the Court issued direction to the prosecution to conclude the trial within a particular span of time it will not cloath the accused with a right to ask for bail. State v. Mobin Khan (2000 SCMR 299), Nisar Ahmed v. The State (PLD 2016 SC 11). However, in the present case, the petitioner was arrested on 14.09.2019 and for more than two years, he is facing trial. The delay in conclusion of trial even prior to insertion of 3rd proviso in section 497, Cr.P.C. was always considered a ground for bail. In the case of Riasat Ali (PLD 1968 SC 353), the Apex Court, while recognizing delay in conclusion of the trial is a valid ground for bail, has observed that:- "Delay in prosecution of accused amounts to abuse of process of law and is a valid ground for bailing out accused, however, delay in prosecution of each case as a ground for bail is to be weighed and judged, in each case on its merits". Likewise in the case of Imtiaz Ahmed v. The State through Special Prosecutor, ANF (2017 SCMR 1194), the Apex Court has also observed that any unreasonable or shocking delay in the conclusion of the trial, before Special Courts, like we are confronted with in the present case, would amount to denial of justice, or to say, denial of fundamental rights, to the accused, of speedy trial. In the case of Adnan Prince's case (PLD 2017 Supreme Court 147), the Hon'ble Apex Court has also held that: "

S. 497

Penal Code (XLV of 1860), Ss. 295-A, 295-B & 295-C

Maliciously insulting the religion or the religious beliefs of any class, defiling etc. of copy of Holy Quran, using of derogatory remarks etc. in respect of the Holy Prophet

Bail, grant of

Scope

Delay of more than two years in conclusion of trial--Record showed that three years and three months had passed since arrest of accused

Delay in conclusion of trial had mainly been caused by the prosecution or the court itself

Even if the adjournments sought by the accused due to absence of his counsel or his non-availability were excluded, his total detention during the trial was more than two years

Despite lapse of three, years and three months examination-in-chief of only a single witness had been recorded during trial

Speedy trial was the right of every accused person, therefore, unnecessary delay in trial of such cases would amount to denial of justice

Accused had made out a case for grant of bail due to inordinate delay in conclusion of his trial

Accused was granted bail accordingly".

6. As far as the contention of the prosecution that for statutory delay the present petitioner could have approached the learned trial Court first and then this petition would be maintainable. With profound respect these assertions have not convinced this Court for the reason that the grant of bail is a concurrent jurisdiction of trial Court as well as this Court.

7. In view of the above, this bail application is allowed and the accused-petitioner is admitted to bail provided he furnishes bail bonds in the sum of Rs. One million with two sureties each in the like amount to the satisfaction of learned trial Court, who shall ensure that the sureties are local, reliable and men of means.

8. Above are the reasons of my short order of even date. SA/200/P Bail granted.