Delay in trial

2021 PCrLJ 1801 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 497Penal Code (XLV of 1860), Ss. 324, 334, 336, 337-A(i), 337-F(i), 337-L(1), 148 & 149Juvenile Justice System Act (XXII of 2018), S. 4 (5)

Attempt to Qatl-i-amd, Shajjah-i-Khaffifa, Itlaf-i-Salahiyyat-i-Udw, Ghayr-Jaifah Damiyah, other hurts, rioting armed with deadly weapons

Bail, grant of

Juvenile offender

Delay in trial

Determining age of accused

Effect

Only ground raised by accused was that he was a juvenile and there was an unexplained delay in conclusion of his trial

Plea raised by injured witness was that the delay was caused on the part of accused in having himself declared as juvenile offender and if he had not made that application, delay could not have been caused in conclusion of trail

Validity

Making of application for being declared juvenile could not be termed a factor that caused delay in conclusion of trial rendering accused disentitled to bail

Such act or omission was to be pregnant with mala fide on the part of accused/juvenile offender and such factor was not available against accused

Delay in conclusion of trial was neither caused nor occasioned by an act or omission of accused or any person acting on his behalf

Accused was entitled to concession of bail on account of delay in conclusion of trial

Bail was allowed in circumstances.

2018 YLR 134 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 9(a) & (b)Constitution of Pakistan, Art. 199Constitutional petitionBail, grant ofDelay in trialMedical groundHardship case

Petitioner was accused facing trial under National Accountability Ordinance, 1999, who was a patient of Hepatitis "C" and had been in custody for more than two years

Validity

Petitioner was an ailing person who was suffering from various ailments including diabetes, hepatitis "C" and liver cirrhosis

Main accused persons had already been released either on bail or on their having entered into plea bargain / voluntary return

Material witnesses were yet to be examined by prosecution and there was no possibility that trial could be concluded at an early date

Prosecution witnesses so far examined did not directly implicate petitioner with commission of alleged offence and the same required further evidence to prove guilt of petitioner after conclusion of trial

Petitioner had made out a case of further inquiry and he was no more required for further investigation, as prosecution had already obtained evidence / material in respect of reference in question

Challan was submitted and trial was proceeding before Accountability Court and there was no possibility that petitioner, if released on bail would tamper with the evidence

Bail could not be withheld as punishment, particularly when matter required further inquiry

Petitioner had already faced agony of prolonged inquiry, investigation and he was confined in jail during trial for a period of almost more than two years

Case of petitioner was one of further inquiry as well as hardship in view of his serious ailments and inordinate delay in conclusion of trial, which could not be attributed to petitioner, whereas prosecution story could not be considered as free from doubt

Bail was allowed in circumstances.

2018 YLR 913 ISLAMABAD Judicial Precedent

S. 497(1), third provisoPenal Code (XLV of 1860), Ss. 302 & 365Qatl-i-amd after abductionBail, grant ofDelay in trialPrinciple

Petitioner had been behind bars for 3 ½ years and delay was not occasioned due to act or omission of petitioner or any other person acting on her behalf

Accused was not directly nominated in FIR except she led recovery of dead body of deceased which was already in knowledge of investigating officer

Bail was allowed in circumstances.

2017 PCrLJ 631 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Art. 10ARight to fair trialDue process of lawDelay in trialEffectObject of trial is to make accused to face trial not to punish under trial prisonerBasic idea is to enable accused to answer criminal prosecution against him rather than to rot him behind the bars

Accused is entitled to expeditious access to justice, which includes a right to fair and expeditious trial without any unreasonable and inordinate delay

Inordinate delay in imparting justice is likely to cause erosion of public confidence in judicial system on one hand and on the other hand it is bound to create a sense of helplessness, despair feeling of frustration and anguish apart from adding to their woes and miseries.

2017 PCrLJN 10 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 497Penal Code (XLV of 1860), Ss. 302, 324, 337-A(i) or 337-A(ii) & 34Pakistan Arms Ordinance (XX of 1965), S. 13(d)Qatl-i-amd; attempt to commit qatl-i-amd; shajjah-i-khafifah; shajjah-i-mudihah; common intentionBail, grant ofFurther inquiryAcquittal in case under Pakistan Arms Ordinance, 1965EffectDelay in trial

Accused had not been attributed any injury to the deceased, and even no overt act towards causing death of the deceased had been alleged

No evidence was produced to establish that the present accused had shared common intention with the co-accused

Question of common intention would be determined by the Trial Court after recording of the statements of the prosecution witnesses

Injury attributed to the accused fell either under S. 337-A(i) or 337-A(ii), P.P.C., to which the prohibitory clause of S. 497, Cr.P.C. was not attracted

No motive had been attributed to the accused for participating in alleged occurrence or injuring the complainant

Co-accused had caused firearm injuries to both the deceased, which resulted in their death, while the present accused had neither attacked upon the deceased nor caused any injury to them, and the only allegation against him was that he had fired gunshots, as result of which the injured person had sustained injuries on his left arm

Complainant had not challenged the submission of the challan separately treating the accused as juvenile offender, as the accused was 16 years old at the time of the incident, as per his birth certificate

Another FIR under S. 13(d) of Pakistan Arms Ordinance, 1965 had been lodged against present accused regarding recovery of unlicensed weapon allegedly used in the commission of the offence; however, the Magistrate, after recording of the evidence, had acquitted the accused in that case

Entire prosecution evidence was based upon the use and recovery of said weapon, and after his acquittal from said case, his case required serious consideration

Prosecution had failed to examine a single witness during the period of about 43 months to substantiate the charge against the accused, while he had been behind the bars during that period, which reflected that the complainant was not serious to conclude the trial and was merely interested to keep the accused in custody

Bail application was allowed accordingly.

2015 YLR 216 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 497National Accountability Ordinance (XVIII of 1999), S.9(b)Constitution of Pakistan, Art.199Constitutional petitionDelay in trialBail on statutory groundAccused had been behind bars for 18 monthsDelay in trial was not caused due to any inaction or impediment on the part of accused or his counselOnly five out of 27 witnesses had been examined so trial was not likely to be concluded in near futureObject of trial was to make the accused to face the trial and not to punish the under-trial prisoner

Accused was entitled to expeditious access to justice which included right to fair and expeditious trial without any unreasonable delay

Accused was granted bail.

2015 MLD 515 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S.497Penal Code (XLV of 1860), Ss.324, 353 & 392Attempt to commit Qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty and robberyBail, grant ofDelay in trialEffectAccused was arrested on 15-8-2012, at the spot and since then he had been behind the barsEffectExpeditious and fair trial was a fundamental right of accused

Delay in disposal of case and imparting justice could reduce confidence of public in judicial system and would cause frustration and anguish

Object of criminal law was to bring accused to justice as speedily as possible and if they were found guilty, they could be punished and if they were innocent they should be acquitted from the case

Object of criminal prosecution was not to punish an undertrial prisoner for alleged offence and accused could not be detained for an indefinite period without remedy of trial

Accused was not in any way responsible for delay in conclusion of trial and neither accused nor any person acting on his behalf had been shown to be the cause of delay

Bail was allowed in circumstances.

2015 PCrLJ 259 ISLAMABAD Judicial Precedent

S. 497(1), third provisoPenal Code (XLV of 1860), S. 302Constitution of Pakistan, Art. 10-AQatl-i-amdBail, grant ofDelay in trialRight to fair trialPrincipleAccused was arrested on 26-6-2012 and despite lapse of more than two years trial was not concludedEffect

Object of third proviso to S. 497(1), Cr.P.C. was to ensure that right to fair trial as guaranteed under Art. 10-A of the Constitution was not denied

Right to fair trial was not merely restricted to accused but complainant as well

Purpose of avoiding delay was to ensure that sanctity of proceedings remained protected, which inherently included securing credible evidence

Delay defeated ends of justice and could seriously undermine possibility of fair trial

Delay in trial resulted in an inherent risk of undermining and eroding credibility of evidence as human memory impaired with passage of time, witness might not be traceable or documents might get lost

Edifice of criminal law was premised on the principle that trials must be concluded within a reasonable time, expeditiously and without unnecessary delay

Delay in trial but in criminal trials in particular was intolerable

Delay in trial beyond the period of two years was not attributed to accused or his agent

Delay was on the part of prosecution, complainant or administrative exigencies of Court

High Court did not deny to petitioner the right of bail under third proviso to S.497(1), Cr.P.C., which right was not left to discretion of High Court

Bail was allowed in circumstances.

2014 SCMR 1353 SUPREME-COURT Judicial Precedent

S. 497Electricity Act (IX of 1910), S. 39-APrevention of Corruption Act (II of 1947), S. 5(2)Electricity theft, criminal misconductBail, grant ofDelay in trialMedical groundsLate age of accusedEffect

Accused allegedly committed theft of electricity and also provided such electricity to other inhabitants of the locality

Accused was an aged man and was also ill

Section 39-A of Electricity Act, 1910 provided a sentence of 3 years' imprisonment [thus it did not fall within the prohibitory clause of S. 497(1), Cr.P.C.]

Accused was behind bars for the last seven months

Challan had been submitted against accused but on account of non-availability of Special Judge, the trial was not proceeding

Supreme Court granted bail to accused in circumstances and directed the concerned authority to take immediate steps for appointment of Presiding Officers of Special Courts.

2014 MLD 723 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss.103 & 497Control of Narcotic Substances Act (XXV of 1997), Ss.9 (c) & 25Recovery of narcotic substanceBail, grant ofComplainant as investigating officerDelay in trialPrivate witness, non-association ofCharas weighing 3 kilograms was allegedly recovered from accused during day time in a busy street

Plea raised by accused was that no private person was associated with recovery proceedings, complainant of case himself investigated the case and accused had been in custody for the last 22 months

Validity

Investigating officer should not be biased and if complainant of crime was also investigating officer, then in such eventuality factor of bias could not be ruled out

Provisions of S. 25 of Control of Narcotic Substances Act, 1997, excluded applicability of S. 103, Cr.P.C. but such exclusion did not authorize investigating officer of police or such other officer absolutely to exclude independent witnesses in all circumstances

Question of extension of benefit of doubt particularly at least in a case of further inquiry needed to be determined at bail stage, keeping in view the difference between "jail life" and "free life"

Accused was a young man of phosphoric age and since his arrest he had been behind the bar (for more than 22 months)

Case set up against accused was of great doubt and needed further inquiry

High Court did not allow to keep accused behind bars continuously amongst criminals and that too without any conviction in regular trial

Grant of bail in bailable offences was a right and not a favour and in non-bailable offences grant of bail though was not a right but a grace/concession

Bail was allowed in circumstances.

2013 PCrLJ 1162 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 497(1) [as amended by S. 3 of Code of Criminal Procedure (Amendment) Act (VIII of 2011)]Penal Code (XLV of 1860), S.302/34Qatl-e-amd and common intentionBail, grant ofDelay in trial

More than two years had passed and accused was in custody ever since; there were in all sixteen prosecution witnesses, out of which only three had been examined and thirteen were to be examined

Accused had sought bail on statutory delay

Validity

Case of accused was fully covered under newly-added proviso to S.497, Cr.P.C. and he was entitled to bail on the ground of statutory delay

Bail was allowed in circumstances.

2013 PCrLJ 1162 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 497(1) [as amended by S. 3 of Code of Criminal Procedure (Amendment) Act (VIII of 2011)]Delay in trialGrant or refusal of bailPrinciples

Right of accused to get bail under amended S.497, Cr.P.C. is not left to discretion of court but is controlled by that provision

Bail under newly-added proviso under S.497, Cr.P.C. can be refused to accused by court, only on the ground that delay in conclusion of trial occasioned on account of act or omission on the part of accused or any person acting on his behalf

Bail under amended provision can also be refused by court, if accused is previously convicted offender for offence punishable with death or imprisonment for life or to a person who, in the opinion of court is accused of act of terrorism punishable with death or imprisonment for life.