1988 PLP r (PCRLJ)

"(1)Cr. No. 5/84 under section 379, P.P.C. registered with Market P.S. Hyderabad (2) Cr. No. 140/77 under .sections 393, 394, 398, 34 P. P.C, P.S. Clifton Karachi. (3) Cr. No. 41/77 under section 13/D Arms Ordinance P.S. Clifton Karachi. (4) Cr. No. 185/85 udder section 13/D Arms Ordinance P.S. Latifabad Hyderabad. (5) Cr. No. 116/79 under sections 307, 34, P.P.C. P.S. City, Hyderabad. (6) Cr. No. 20/85 under sections 302/307/34, 120‑B, (present case). (7) Cr. No. 169/79 under sections 353, 332, P.P.C. P.S. City, Hyderabad. (8) Cr. No. (?) under sections 302, 307, 364, 400, 109, P.P.C. P.S. Cantonment, Hyderabad. It was also reported that on 23‑11‑1985 the accused was challaned under Sind Crime Control Act from P.S. Cantt. Hyderabad although he was continuously, in custody from August, 1985. After hearing the arguments of both the learned counsel for the accused and the complainant as well as of the learned APP, the learned trial Court vide its impugned order held that the accused was entitled to the concession of bail on the ground of delay as he was in no manner responsible for the said delay. He then proceeded to consider if the case of the accused was hit by the fourth proviso to section 497(1), Cr.P.C. In that behalf he observed that there was no material placed before the Court to prove that the accused is a previous convict. He then examined as to whether on the basis of 8/9 cases registered against the accused, as mentioned above, he could be held to be a hardened, desperate or dangerous criminal. In this connection also he observed that the material placed before him pertaining to those cases was too scanty to form an opinion that the accused is hardened, desperate or dangerous criminal. Lastly, he held that even on the facts of the case in hand and the manner in which the accused committed the offence does not prove that he is desperate, dangerous or hardened criminal. He, therefore, admitted the accused to bail as stated above. Mr. Aftab Ahmed Akhund, learned counsel for the applicant/complainant vehemently reiterated the same contentions before me which were made before the trial Court. He submitted that the accused had committed the murder in the presence of four eye‑witnesses including police constables and it shows that how desperate a criminal he is. He urged that as many as 8 other cases are pending against the accused which clearly shows that he is a hardened criminal. The highhandedness with which the offence of the case in hand has been committed is, according to him, by itself sufficient to hold the accused to be a desperate, dangerous and hardened criminal. Even the presence of police constables could not deter the accused from committing the murder‑‑a fact which goes to show that he is a desperate or dangerous criminal. The counsel submitted that in all the aforesaid 8 cases reported against him by the police challans have been submitted against the accused. The learned counsel then drew my attention to the following authorities to urge that the learned trial Court has acted arbitrarily in granting the bail to the accused. (1) P L D 1985 Kar. 224 and 437. (2) P L D 1986 Kar. 629. (3) 1986 P Cr. L J 2184. (4) P L D 1987 Kar. 667 (5) 1986 S C M R 1825. (6) 1987 P Cr. L J

737. Syed Sarfaraz Ahmed, learned A.A.‑G., also supported the bail application. He urged that in an unreported decision by a Division Bench recorded on a reference in the case of Haji v. State in Criminal Bail Application No.447 of 1986 it has been held that the facts of the case in which the bail is sought on the ground of delay can also be taken note of for considering the fact as to whether the applicant -accused is a desperate, dangerous and hardened criminal. In support of the same proposition he also drew my attention to another decision of this Court reported in P L D 1986 Kar.

667. Mr. Qurban Ali H. Chohan, learned counsel for the accused, on the other hand, supported the order of the learned trial Court. He submitted that no challan has been submitted in Cr. Case No. 185/85 and Criminal Case No.41 of 1977. The accused has, however, been granted bail in both the said cases. He urged that in so far as Case No. 185/85 and Case No.41/77 are concerned, the accused does not know anything about those cases till today although they are of the year 1977. With regard to Criminal Case No.116/77, the counsel submitted that there was nothing against the accused in this case and it has unnecessarily been shown as a case pending against the accused. The counsel urged that as a matter of fact the said cases are the outcome of the malice on the part of the police. With regard to the present case the counsel contended that the learned trial Court has taken into consideration all the relevant facts for holding that accused is not a desperate, dangerous and hardened criminal. Relying upon a decision of the Baluchistan High Court in the case of Mohammad Hashim v. Nabidad and another (P L D 1987 Quetta 194) the learned counsel submitted that unless the grant of bail is found to be arbitrary, capricious and contrary to record, the superior Courts do not cancel the same. In his submission the order under appeal is well considered. Lastly, he placed reliance on a decision in the case of Abdul Halim v. State (P L D 1986 Pesh. 92) wherein it has been held as under: "If a bare charge is allowed to be a proof for a person, declaring him a hardened criminal and desperate character, there could be no end to such allegations and there would be no way for a person innocently charged in certain cases. The levy of a charge is somewhat different than to prove it .If, however, there is nothing against a person except the bare allegation or a mere charge, for all intents and purposes he is presumed to be as much a responsible citizen as others of soft character." He also urged that no witness has been examined even till today although the offence was allegedly committed as far back as on 4‑3‑1985. The enmity between the parties has been admitted even in the F.I.R. and hence the accused has been rightly enlarged on bail. In this connection he placed reliance on a single bench decision of this Court reported in 1987 P Cr. L J

330. Having heard the arguments of the learned counsel for the parties and upon careful perusal of the order of the learned trial Court granting bail to the accused I am clearly of the opinion that the applicant/complainant has failed to make out a case for the cancellation of the said order. The learned trial Court has taken into consideration all the relevant facts and circumstances including the facts and circumstances in which the offence under consideration has been committed and he has, in my opinion, rightly held that the case, of the accused is not hit by the fourth proviso to section 497(1); Cr.P.C. The reasons given by the learned trial Court for its reaching the conclusion that the accused is not a desperate, dangerous or hardened criminal cannot by any stretch of reasoning be held to be either arbitrary or contrary to the fundamental principle of law and procedure to be kept in view while granting the bail by invoking the provisions of third proviso to section 497(1), Cr.P.C. It is too well established a principle of law by authorities to be mentioned that no hard and fast rule can be enunciated or laid down for holding as to when a person can be said to be a desperate, dangerous and hardened criminal. It will depend upon the facts of each individual case and in the facts of the case in hand, as already observed, the learned lower Court has in no way committed an error of law or procedure so as to justify an interference with his order. The material brought on record by the prosecution is so scanty and insufficient as to hold on the basis whereof that the accused is a hardened, desperate or dangerous criminal. The mere mentioning of the 8 cases allegedly pending against the accused is by itself not enough or reliable material for forming an opinion that the accused is a hardened, desperate or dangerous criminal. A reference in this connection may'/ be made to a decision of this Court reported in 1987 P Cr. L J

737. In the result the application is dismissed as being devoid of force. M.Y.H/A‑315/ K Petition dismissed