2026 PLP 154 (MLD)

Ijaz anwar, J.

This bail application has been filed by accused petitioner Faird Ullah son of Mehmood Khan is seeking bail in case FIR No. 132 dated 18.03.2022 under section 9-D KPCNSA, 2019 read with sections 419/420, P.P.C of Police Station Tatara, District Peshawar.

2. Accused petitioner is charged for recovery of Charas weighing 14400 grams from Pick Up No. B-7696 being driven by him.

3. Arguments of counsel for the parties heard and record gone through.

4. Counsel for accused petitioner contended that he will press this petition only on the ground of statutory delay in conclusion of trial of the accused petitioner. As such, no need to discuss merits of the case. Perusal of record would show that accused petitioner was arrested on 18.3.2022, challan was submitted on 02.07.2022 and charge against him was framed on 08.10.2022 and till date, the trial of the accused petitioner has not been concluded and almost half of the prosecution evidence is yet to be recorded.

5. Record/order sheets of the trial court would transpire that on majority of the dates, the PWs were not present, one some dates, the Presiding Officer was on leave while on other dates, the local Bar was on strike. Though, there are two adjournments on part of the defese i.e. 13.2.2023 and 01.2.2024 when the PWs were present but counsel for accused was not available, however, keeping in view adjournments on majority of the dates on part of the prosecution, the delay cannot be solely attributed to accused. The delay on part of the defese pertaining to these two days comes to be about 24/25 days whereas the accused petitioner is behind the bars for the last 02 years and 03 months and his trial has not been concluded so far and if the proceedings before the trial court continued in such leisurely manner, it may take another year to conclude the trial.

6. In the above situation, the legislature has introduced 3rd proviso to section 497(1), Cr.P.C where under the right of accused to get bail is not left to the discretion of the Court but is controlled by that provision. Para (b) to 3rd Proviso to section 497(1), Cr.P.C says that if an accused is charged of an offence punishable with death who has been detained for such offence for a continuous period exceeding two years and whose trial for such offence has not been concluded he has a statutory right to be released on bail. The same being relevant is reproduced as under: (b). who, being accused of any offence punishable with death, has been detained for such offence for a continuous period exceeding two years and in case of a woman exceeding one year and whose trial for such offence has not concluded. If the delay occurred because of the two adjournments on part of the defense is excluded, still the case of accused petitioner is ripe for consideration under para-b to 3rd proviso to section 497(1), Cr.P.C as the statutory period of two years is to be reckoned from the date of arrest of an accused person and not from the date when the charge was framed as laid down by the august Supreme Court of Pakistan in case title Nadeem Samson v. The State and others (PLD 2022 SC 112).

7. Bail under 3rd proviso to section 497(1), Cr.P.C can be refused to an accused by the Court only on two grounds i.e., one mentioned in 3rd proviso itself 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 and the second mentioned in 4th proviso that the accused is 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. Nothing has been brought on record that the delay in conclusion of trial has been brought on record that the delay in conclusion of trial has been occasioned solely on part of the accused petitioner or any other person acting on his behalf or that he is an offender covered by the 4th proviso to section 497(1), Cr.P.C, thus he is entitled to be released on bail. Reliance can be placed on recent judgment of the august Supreme Court of Pakistan reported in 2022 SCMR 1 Shakeel Shah v. The State and others. The instant bail application is, thus, allowed.

8. These are the reasons for my short order even dated which is reproduced as under:- This bail application has been filed by accused petitioner Farid Ullah son of Mehmood Khan is seeking bail in case FIR No. 132 dated 18.03.2022 under section 9-D KPCNSA, 2019 read with sections 419/420, P.P.C of Police Station Tatara, Distrct Peshawar. For the reasons to be recorded later, the instant bail application is allowed and the accused petitioner is allowed and the accused petitioner is admitted to bail provided he furnishes bail bonds in the sum of Rs. 300,000/- with two sureties each in the like amount to the satisfaction of Illaqa/Judicial Magistrate/MOD, who shall ensure that the sureties are locak, reliable and men of means. JK/163/P Application allowed.