Statutory ground of delay

2023 YLR 1036 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 497BailDelay in conclusion of trialStatutory ground of delayScope

For deciding whether the accused occasioned delay in the trial, it is not necessary to count and consider the entire docket and segregate such dates to calculate the days of delay with mathematical precision, overall act and conduct of the accused persons to frustrate trial through a planned and pre-determined scheme is sufficient to divest them

Although, the statute has given a right under the third proviso of S.497(1), Cr.P.C., but the fourth proviso is a controlling proviso, which prevents from pervasive misuse by zealous judicial vigilance at the time of extending benefit under the third proviso by using a frightening expression as "desperate or dangerous criminal"

Term desperate is itself meaningful.

2022 YLR 1655 PESHAWAR-HIGH-COURT Judicial Precedent

S. 497BailStatutory ground of delayScope

Part (a) of third proviso to S. 497(1), Cr.P.C. envisages that in an offence not punishable with death, the trial of the accused is to be concluded within a period of one year from the date of his/her detention, and in case the trial was not so concluded, the law mandates the release of the accused on bail

Accused has a statutory right to be released on bail if his trial for such offence was not concluded within a period of one year from the date of his detention and such period begins from the date of the arrest/detention of the accused and it is of little importance as to when the charge was framed and the trial commenced

Purpose and objective of the provision is to ensure that the trial of an accused is conducted expeditiously and the pre-conviction detention of an accused does not extend beyond the period of one year in cases involving offences not punishable with death

If the trial of an accused was not concluded within a year of his detention, the statutory right to be released on bail ripened in his favour

Such statutory right to be released on bail is, however, subject to two exceptions: one is embodied in the third proviso itself and the second is provided in the fourth proviso to S. 497, Cr.P.C.

As per these exceptions, the right to be released on bail on the ground of delay in conclusion of the trial is not available to an accused if: (i) 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, or (ii) 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

Second exception to the right of the accused to be released on bail on the ground of delay in conclusion of the trial is provided in the fourth proviso to S. 497, Cr.P.C. according to which the provisions of the third proviso do not apply to the accused who is: (i) a convicted offender for an offence punishable with death or imprisonment for life; or (ii) a hardened, desperate or dangerous criminal, in the opinion of the Court; or (iii) an accused of an act of terrorism punishable with death or imprisonment for life.

2022 YLR 1655 PESHAWAR-HIGH-COURT Judicial Precedent

S. 9(c)Criminal Procedure Code (V of 1898), S.497Possession of narcoticsBailStatutory ground of delayScope

Proviso to S. 9(c) of the Narcotic Substances Act, 1997, provides that if quantity of narcotics recovered exceeds 10 K.Gs. then the punishment shall not be less than imprisonment for life

By necessary application it will conversely suggest that if the quantity of recovered narcotic is less than 10 K.Gs., then the mandatory punishment of imprisonment for life so provided in the proviso would not be applicable.

2019 PCrLJN 76 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 497Penal Code (XLV of 1860), Ss. 302, 114, 337-H(2), 504 & 34

Qatl-i-amd, abetment of offence, if the abettor is present when offence is committed, rash or negligent act to endanger human life or personal safety of others, insult intended to provoke a breach of peace, common intention

Bail, grant of

Statutory ground of delay

Scope

Long incarceration

Scope

Petitioner was shown present at the place of incident, armed with firearm and on his instigation, other accused made fire shot, upon the deceased (son of the complainant)

Petitioner contended that delay in conclusion of trial could not be attributed to him

First Information Report of alleged incident was lodged with the delay of 11 hours of incident

Petitioner was behind the bars for more than three years

Diary sheets of the Trial Court reflected that petitioner was not responsible for inordinate delay in disposal of the case

No overt act, except instigation, had been alleged against the petitioner

Record revealed that the petitioner had been acquitted in other criminal cases lodged against him

Liberty of individual, had been guaranteed by the Constitution

Speedy trial was inalienable right of every accused person, therefore, even if the provision of S. 497, Cr.P.C. in ordinary course was not applicable, the broader principle of the same could be pressed into service in hardship cases to provide relief to a deserving accused person incarcerated in jail for a long period

Accused person could not be left at the mercy of the prosecution to rotten him in jail for an indefinite period

Delay in the conclusion of trial of detained prisoners could not be lightly ignored provided the same was not caused due to any act or omission of accused

Court could refuse the bail to the accused on the grounds of statutory delay in conclusion of the trial if such delay had been occasioned on account of act or omission on the part of the accused or any person acting on his behalf, or if accused was a previously convicted offender for an offence punishable with death or imprisonment for life or, if accused in the opinion of the Court, was a hardened, desperate or dangerous criminal or was accused of an act of terrorism, punishable with death or imprisonment for life

When statement of one of the prosecution witnesses was yet to be recorded, the trial could not be said to have been concluded

Trial would be deemed to have been concluded only when the statements of all the prosecution witnesses had been recorded

Bail was granted to the petitioner, in circumstances.

2018 PCrLJ 140 PESHAWAR-HIGH-COURT Judicial Precedent

S. 497(1)Bail, grant ofStatutory ground of delayScope

Delay in conclusion of trial would enable accused person for his post-arrest bail where he had been detained continuously exceeding two years for an offence punishable with death or imprisonment for life, provided that he in the opinion of the court was not a hardened, desperate, dangerous criminal or was accused of an act of terrorism or previously convicted person for an offence punishable with death

Word "shall" in proviso fourthly of S. 497(1), Cr.P.C. meant that where the statutory period was complete, delay was not on the part of accused and his case did not fall under any of the categories of fourth proviso to S. 497, Cr.P.C., court would have no choice but to release the accused on bail.

2018 PCrLJ 140 PESHAWAR-HIGH-COURT Judicial Precedent

Ss. 497 & 512Penal Code (XLV of 1860), Ss. 302, 324 & 34Qatl-i-amd, attempt to commit qatl-i-amd, common intentionBail, grant ofStatutory ground of delayAccused was arrested on 20.04.2015 and statutory period was complete on 20.04.2017 but his trial was not concluded

Majority of adjournments were due to absence of prosecution witnesses and even Presiding Officer had not taken any coercive measures either against process server or prosecution witnesses

Nothing was available on record which could reflect that delay occasioned in trial was either on part of accused or any person acting on his behalf

Argument of counsel for complainant that application for grant of bail on statutory ground was pre-mature as charge had been framed was misconceived because time of detention of accused would be reckoned from the date of his arrest and not from commencement of trial

Killing of a person over dispute on women folk by firing at him was not an act of desperate, hardened or dangerous criminal

Effect of criminal cases registered against accused was not relevant for disposing of bail application

Abscondance of accused pertained to merits of case and did not come under exceptional provisions of fourth proviso of S. 497, subsection (1), Cr.P.C.

Accused was entitled to concession of bail as of right on basis of delay in conclusion of trial

Bail was granted accordingly.

2018 PCrLJ 104 PESHAWAR-HIGH-COURT Judicial Precedent

S. 497Penal Code (XLV of 1860), Ss. 302, 324 & 34Qatl-i-amd, attempt to commit qatl-i-amd, common intentionBail, grant ofStatutory ground of delay

Main contention of counsel for accused was that accused was entitled to concession of bail on ground of delay in conclusion of trial

Accused was behind the bars for more than two years

Eleven prosecution witnesses were examined while eight material prosecution witnesses were yet to be examined and there was no likelihood of conclusion of trial in a near future

Delay was mainly caused by prosecution or court itself

Nothing was on record which could suggest that accused was a previous convict punishable with death or imprisonment for life; nor he was hardened, desperate or dangerous criminal or charged for an offence of terrorism punishable with death or imprisonment for life

Gravity of offence and abscondance was alien to statutory right of bail

Accused was entitled to be released on bail on ground of statutory delay as provided in third proviso to S. 497, Cr.P.C.

Bail was granted accordingly.

2018 YLRN 150 PESHAWAR-HIGH-COURT Judicial Precedent

S. 497Control of Narcotic Substances Act (XXV of 1997), S. 9(c)Possession of narcotic drugsBail, grant ofStatutory ground of delay

Accused had already spent over twenty two months behind the bars and prosecution was not coming up with its evidence as four prosecution witnesses were yet to be examined

Early conclusion of trial was not in sight and keeping the accused in jail for further period would tantamount to his pre-trial conviction

Accused was entitled to concession of bail solely on the statutory ground of delay in the conclusion of trial

Bail was granted accordingly.

2018 YLRN 144 PESHAWAR-HIGH-COURT Judicial Precedent

S. 497Control of Narcotic Substances Act (XXV of 1997), S. 9(c)Possession of narcotic drugsBail, grant ofStatutory ground of delayChallan was submitted against accused on 18.03.2015Charge was framed against accused on 27.05.2015 and only two prosecution witnesses were examined till 19.06.2017

Accused was behind the bars for thirty months and his trial was not concluded despite issuance of direction by High Court in bail application of accused on statutory ground of delay

Accused was ordered to be released on bail

Bail was allowed accordingly.

2018 YLRN 57 PESHAWAR-HIGH-COURT Judicial Precedent

S. 497BailStatutory ground of delayScope

Mere mathematical calculation alone was not sufficient for grant of bail, rather the court had to look into the overall conduct of accused during the course of trial and factors which caused delay in the trial on the part of defence.

2018 YLRN 57 PESHAWAR-HIGH-COURT Judicial Precedent

S. 497Penal Code (XLV of 1860), Ss. 337-A(V), 337-L(1) & 34Hurt, common intentionBail, refusal ofStatutory ground of delayAccused allegedly caused injuries to injured

Adjournments had been sought due to absence of defence counsel therefore accused was not entitled to be released on bail on statutory ground

Bail was refused accordingly.

2018 PCrLJN 118 PESHAWAR-HIGH-COURT Judicial Precedent

S. 497Control of Narcotic Substances Act (XXV of 1997), S. 9(c)Possession and trafficking of narcoticsBail, grant ofStatutory groundAccused was behind the bars for the last more than two years and his trial was not concludedOnly one prosecution witness could be examined by the Trial Court during the said period

Case was being adjourned for the last more than two years on account of prosecution which was not examining the available prosecution witnesses

Record showed that twenty-one times the case was adjourned for recording prosecution evidence and only for two times the case was adjourned due to the absence of defence counsel

No strong reason was available to withhold the concession of bail, in circumstances, when the delay in conclusion of the trial was not on the part of accused

Bail was allowed in circumstances.

2018 PCrLJN 43 PESHAWAR-HIGH-COURT Judicial Precedent

S. 497Penal Code (XLV of 1860), Ss. 302, 324, 114 & 34Qatl-i-amd, attempt to commit qatl-i-amd, abettor present when offence committed, common intentionBail, grant ofStatutory ground of delay

Trial of accused was being delayed due to non-availability of complainant who had gone abroad in connection with his service

Accused had made out a case of bail under third proviso to S. 497, Cr.P.C.

Bail was granted accordingly.

2018 YLR 1226 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S.497BailStatutory ground of delayScope

Record revealed that the witnesses on most of the dates were present but defence did not proceed with the matter and hearing kept on postponing on the asking of accused or his counsel, resulting in causing delay in the conclusion of the matter

Where the adjournments were sought by the accused and the witnesses for prosecution were not cross-examined for no justifiable reason, bail could be refused even after lapse of statutory period.

2018 PCrLJN 77 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 497Penal Code (XLV of 1860), Ss. 302 & 34Qatl-i-amd, common intentionBail, grant ofStatutory ground of delayScopeOnly ground agitated by counsel for accused was delay in conclusion of trialAccused was behind the bars for two years, five months and twenty one days without any fruitful progress in the trial

Complainant also filed private complaint with the delay of one year and two months and charge was framed with the delay of more than two year of the arrest of accused

Delay could not be attributed to accused before framing of charge

Accused remained present before trial court under custody on almost all the dates of hearing

Accused was a previous non-convict and could not be detained in jail for an indefinite period as early trial was right of the accused

Bail was granted accordingly.

2018 YLRN 101 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 497BailStatutory ground of delayScope

Ground of statutory delay in conclusion of trial could be refused to the accused by the court if delay was occasioned on account of an act or omission on the part of accused or any person acting on his behalf or if accused was a previously convicted offender for an offence punishable with death or imprisonment for life or in the opinion of court was hardened, desperate or dangerous criminal or was accused of an act of terrorism punishable with death or imprisonment for life.

2018 YLRN 101 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 497Penal Code (XLV of 1860), Ss. 302, 324, 392 & 34Qatl-i-amd, attempt to commit qatl-i-amd, robbery, common intentionBail, grant ofStatutory ground of delay

Contents of FIR did not reveal name of accused in commission of offence of committing robbery of cash and gold ornaments by inflicting injury to the complainant and also causing murder of complainant's son

Accused was behind the bars since six years

Some adjournments were sought by defence counsel but those were not sufficient to show that accused was responsible to inordinate delay in disposal of case

Provision of S.497, Cr.P.C. could be pressed into service in hardship cases to provide relief to a deserving accused person incarcerated in jail for a shocking long period

Accused person could not be left at the mercy of prosecution to remain in jail for an indefinite period

Bail was granted accordingly.

2018 PCrLJN 24 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 497Penal Code (XLV of 1860), Ss. 302, 337(H)(2) & 34Qatl-i-amd, hurt, common intentionBail, grant ofStatutory ground of delayScope

Record showed that accused had spent approximately four years in detention on account of no fault of his own or anyone acting on his behalf

Neither the State nor the complainant had placed any evidence on record that accused was a previous convict for an offence punishable with death or imprisonment for life or was a person who in the opinion of Court was hardened desperate or dangerous criminal or was accused of an act of terrorism punishable with death or imprisonment for life

Grant of bail on ground of statutory delay was not a simple mathematic calculation alone which needed to be undertaken but the entire conduct of the accused and the proceedings were to be considered

Accused had been charged with a very serious offence and had been attributed direct and specific role however same would not preclude right to the grant of bail on the ground of statutory delay

Two co-accused attributed the role of aerial firing had already been granted pre-arrest bail by Trial Court

Nine prosecution witnesses were yet to be examined which under the circumstances and in view of the history of the case were unlikely to be examined within next six months

Trial Court had already denied the bail of accused on statutory grounds approximately eighteen months ago and did not allude any delay caused by the accused but dismissed application on the ground of accused's role and the fact that complainant and one prosecution witness had already been examined only one prosecution witness had been examined since last eighteen months which showed the pace of the trial, trial was, therefore, unlikely to be concluded in near future

Accused was enlarged on post arrest bail accordingly.