ISLAMABAD: The Supreme Court said in the absence of any material regarding the allegations of hardened, desperate or dangerous, words used in fourth proviso to section 497(1) CrPC, bail to an accused arrested in criminal case cannot be denied.

A two-judge bench, headed by Justice Syed Mansoor Ali Shah heard an appeal of Shakeel Shah against the order of the Islamabad High Court, which had denied the post-arrest bail to the appellant on the ground of delay in conclusion of the trial and that the petitioner having been previously convicted for other offences was a hardened, desperate and dangerous criminal stated in third and fourth proviso to section 497(1) CrPC.

All the three words paint a picture of a person, who is likely to seriously injure and hurt others without caring for the consequences of his violent act.

Therefore, for this exception to apply, there has to be material to show that the accused is such a person who will pose a serious threat to the society, if set free on bail.

The judgment said that under third proviso the act or omission on the part of the accused to delay the timely conclusion of the trial must be the result of a visible concerted effort orchestrated by the accused.

Merely some adjournments sought by the counsel of the accused cannot be counted as an act or omission on behalf of the accused to delay the conclusion of the trial, unless the adjournments are sought without any sufficient cause on crucial hearings, i.e., the hearings fixed for examination or cross-examination of the prosecution witnesses, or the adjournments are repetitive, reflecting a design or pattern to consciously delay the conclusion of the trial.

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It said mere mathematical counting of all the dates of adjournments sought for on behalf of the accused is not sufficient to deprive the accused of his right to bail under the third proviso.

The statutory right to be released on bail flows from the constitutional right to liberty and fair trial under Articles 9 and 10A of the Constitution.

The judgment said that the provisions of the third and fourth provisos to section 497(1) CrPC must be examined through the constitutional lens and fashioned in a manner that is progressive and expansive of the rights of an accused, who is still under trial and has the presumption of innocence in his favour.

To convince the court for denying bail to the accused, the prosecution must show, on the basis of the record, that there is a concerted effort on the part of the accused or his counsel to delay the conclusion of the trial by seeking adjournments without sufficient cause on crucial hearings and/or by making frivolous miscellaneous applications.

The petitioner was arrested on 21 January 2020 and the charge against him was framed on 8 December 2020.

The petitioner was charged with offences punishable under sections 392 and 411 PPC, which are not punishable with death.

He moved the application for bail on statutory ground of delay in January 2021.

Copyright Business Recorder, 2021