Trial delay ripens case for post-arrest bail

The top court has ruled that if a trial for an offence not punishable by death is not concluded even after one year then the accused’s right to a post-arrest bail ripens.

"This right continues to ripen for each period of one year starting from the arrest of the accused if he satisfies the court that he is not at fault for the delay in a particular period of one year unless his case falls within the 4th proviso to Section 497(1) of CrPC [Code of Criminal Procedure],” said a six-page verdict authored by Justice Syed Mansoor Ali Shah.

Justice Shah was leading a bench also comprising Justice Ayesha Malik that rejected cancellation of the post-arrest bail of an accused on the statutory ground of delay in the conclusion of the trial.

The verdict said denying this recurring right to post-arrest bail to the accused would amount to giving the prosecution a license to delay the conclusion of the trial for an unlimited period of time after the dismissal of the first bail application of an accused on the statutory ground of delay.

It said an accused would, in such an eventuality, be left confined as an under-trial prisoner for an unlimited period at the mercy of the prosecution to conclude the trial as and when it pleases to do so.

"The accused shall have no incentive to attend the trial regularly and cooperate in the early conclusion thereof, after the dismissal of his first bail application, if his subsequent orderly conduct cannot entitle him to post-arrest bail despite non-conclusion of the trial for no fault of his in the next one year.

"Such a situation would be absolutely antithetical to the constitutional scheme of fundamental rights and make a mockery of the rights to liberty, fair trial and dignity of the accused guaranteed under the Constitution,” it noted.

The court said it is a well-settled principle of interpretation in Pakistan’s jurisdiction that if two interpretations of a provision of a criminal statute are reasonably possible, then the one that is favourable to the accused, not the prosecution, should be preferred.

"As the statutory right to be released on bail on the ground of delay in the conclusion of the trial flows from the constitutional rights to liberty, fair trial and dignity guaranteed under Articles 9, 10A and 14 of the Constitution of Pakistan, the provisions of the 3rd proviso must be fashioned in a manner that is progressive and expansive of these rights of the accused, who is still under trial, and his guilt being not yet proven, has in his favour the presumption of innocence.

"If the trial in such an offence is not concluded within a period of one year for no fault of the accused, the statutory right to be released on bail ripens in his favour unless his case falls within any of the clauses of the 4th provison.

"This right of the accused creates a corresponding duty upon the prosecution to conclude the trial within the specified period of one year. If any act or omission of the accused hinders the conclusion of the trial within a period of one year, no such right will accrue to him and he would not be entitled to be released on bail on the statutory ground of delay in conclusion of the trial.

“But if after the rejection of his plea for bail on this ground, the accused corrects himself and abstains from doing any such act or omission in the year following such rejection but the prosecution fails to perform its duty in concluding the trial within the specified period of one year, a fresh right, that is to say, a fresh ground, would accrue in his favour.

“The 3rd proviso to Section 497, CrPC, thus, becomes operative as and when a period of one year passes but the trial is not concluded for no fault of the accused.”

“We are, therefore, of the opinion that the delay in the conclusion of the trial that occurs for no fault of the accused in the year following the rejection of his bail application on the statutory ground of delay, is to be considered a “fresh ground”, not earlier available to him, for entertaining his second bail application, within the meaning and scope of that term as elaborated in Nazir Ahmed."

The SC said the high court arrived at the right decision but remained remiss in elaborating the entitlement of the respondent to maintain a second post-arrest bail on the fresh statutory ground of delay that had arisen due to the delay in the conclusion of the trial for his no fault in a subsequent period of one year, which was earlier found not available to him for a previous period of one year.

“However, for the above reason, we find that the high court has acted correctly in entertaining the second bail application of the respondent on the fresh ground of delay in the conclusion of the trial for a period of one year after the dismissal of his earlier bail application.

“There is no legal justification for interference by this court in the impugned order. The petition is found meritless; it is therefore dismissed and the leave to appeal is declined.

“However, as the trial in the case has been pending for a long, we direct the trial court to conclude the trial within a period of three months from the  date of receipt of this order," it said.