Azam Khan vs State S — 2026 PCrLJ 896 PESHAWAR-HIGH-COURT

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Azam Khan VS State S.497 (1), third proviso---Penal Code (XLV of 1860), S. 377---Khyber Pakhtunkhwa Child Protection and Welfare Act (XIII of 2010), S. 53---Sodomy, sexual abuse---Bail, grant of---Statutory ground of delay in conclusion of trial---Allegation against the accused-petitioner was that he committed sodomy with the minor nephew of the complainant---Undoubtedly, accused-petitioner was arrested on 25.02.2022, however, on completion of the investigation, challan was submitted on 19.05.2022 in the Court of Judicial Magistrate---Judicial Magistrate concluded the trial on 18.02.2023, thereby passing the judgment of conviction---An appeal against conviction was filed by the petitioner in Sessions Court, which was dismissed on 20.12.2023, with the observation that the same was filed before the wrong forum---Subsequently, the petitioner filed criminal appeal before High Court, which was accepted by setting aside the conviction and sentence and case was remanded to the Sessions Court by observing that the Judicial Magistrate was not competent to conduct the trial in the instant case---In this backdrop, the submission of challan and trial in the wrong forum could not be attributed to the accused/petitioner or any one acting on his behalf---Record transpired that after remand of the case by High Court, case file was received in the Court of Sessions on 26.9.2024, which was entrusted to the Court of Additional Sessions Judge/GBV/Child Protection Court for disposal---On 11.10.2024, after compliance of provision under S.265-C, Cr.P.C, charge was framed against the accused---Order sheet dated 30.10.2024 of the Trial Court suggested that on said date due to absence of the defence counsel, witnesses could not be examined and the case was adjourned to 07.11.2024---On 24.4.2025, due to absence of defence counsel, the case was adjourned, while on rest of the dates, the case was adjourned due to the absence of witnesses or due to Reader's Note---There was no denial of the fact that almost the trial took one year in the Court of Judicial Magistrate, where the prosecution submitted challan against the accused, which was the main reason for delay---Similarly, ten months elapsed in appeal before the Court of Sessions and eight months in deciding appeal by that Court---Even after remand, seven months had elapsed, however, trial had not concluded as yet---From the date of arrest uptil now, the petitioner was pursuing his legal right, hence, he could not be penalized for the faults committed by the others---As per provision of S.497(1), 3rd proviso (b), in case of statutory delay in the conclusion of trial of an accused for more than two years, he would become entitled for grant of bail, as in the instant case---For considering the bail plea on the ground of statutory delay in conclusion of trial, time was to be reckoned from the date of arrest of the petitioner---Conviction of the accused-petitioner was set aside by High Court on the ground that the trial was not conducted by the competent Court under the Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010, and his case was remanded for de novo trial to be conducted by the Court of competent jurisdiction and as such, the accused/petitioner could not be left to suffer for the act of Court which incompetently tried the case against accused/petitioner in view of the maxim, "actus curiae neminem gravabit" meaning 'an act of the Court shall prejudice no one'---Statutory right to be released on bail under the third proviso to S.497, Cr.P.C. is not merely a statutory right but also stands firmly on constitutional guarantees under Arts. 4, 9 & 10-A of the Constitution---Under the said Articles the accused, like any other citizen, enjoys the protection of law and to be treated in accordance with law---Accused could not be deprived of liberty, except in accordance with law; and in determination of any criminal charge against him the accused shall be entitled to a fair trial and due process---Said baskets of rights are available to an accused who enjoys a presumption of innocence in his favour and understandably could not be subjected to an indefinite pre-trial detention and therefore could not be denied bail under the third proviso to S.497(1) of the Code, unless there is convincing material that the delay has been occasioned by the act or omission of the accused himself or if his case falls under any of the exceptions under the fourth proviso to S.497 of the Code---Bail application was allowed, in circumstances.

Azam Khan vs State S — 2026 PCrLJ 896 PESHAWAR-HIGH-COURT

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