1990 P Cr (PLP)

This is an application for bail made on behalf of applicants Zulfiqar Ali and Muhammad Bachal, who are facing trial for the offence under section 302, P.P.C. and section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (Crime No. 29 of 1986 of Police Station Tando Masti Khan) The bail application made on their behalf was rejected earlier by learned IInd Additional Sessions Judge, Khairpur Mir vide order, dated 11‑12‑1988.

2. I have heard Mr. G.M. Soomro, learned counsel for applicants and Mr. Abdul Ghafoor Mangi, learned AA.‑G. on behalf of State. The learned AA.‑G. has conceded to the grant of bail to applicant Muhammad Bachal. He has, however, opposed the bail application moved on behalf of applicant Zulfiqar Ali.

3. The bail application is pressed on two‑fold grounds, firstly on the ground of statutory delay and secondly on merits, as almost all the prosecution witnesses and the Mashirs have sworn affidavits thereby exonerating the accused for the offence with which they are charged.

4. Admittedly the case against both the applicants has not proceeded as yet. The delay in disposal of the case is also not attributed to them. Applicant Zulfiqar A Ali is in custody since 22‑9‑1986, while applicant Muhammad Bachal is under continuous detention from 23‑11‑1986.

5. Inordinate delay in disposal of a case amounting to an abuse of the process of law, was considered as a ground for allowing bail to the accused even in a murder case, but this exercise was controlled by the discretion of the Court concerned. The third proviso to section 497, Cr.P.C. which was added by the Criminal Procedure (Second Amendment) Ordinance, 1979, made the ground of delay certain and the accused were extended concession of bail as of right, if the H requirements of this proviso were satisfied. The case of Nazeer Hussain v. Ziaul Haq, reported in 1983 S C M R 72, is relevant in this behalf. This concession, however, did not achieve the desired result of speedy justice and instead the habitual offenders were benefited with this proviso. In order to meet this exigency the Legislature qualified (his proviso with the fourth one, which was added in the year 1983 in the following words: "Provided further that the provisions of the third proviso shall not apply to a previously convicted offender or to a person who, in the opinion of the Court is a hardened, desperate or dangerous criminal." The Legislature has, therefore, denied the concession of bail on the ground of delay to the following persons: (1) a previously convicted offender; (2) a person who, in the opinion of the Court is a hardened, desperate or dangerous criminal.

6. The effect of fourth proviso to section 497, Cr.P.C. was examined in Rahim Bux and others v. The State reported in P L D 1986 Kar. 224, and a learned Single Judge of this Court observed as under: "On a careful reading of the fourth proviso in the light of the above dictionary meanings of the expressions, desperate, hardened and dangerous criminal, I am in no doubt that these expressions do not cover a person against whom there is only an accusation in the shape of a complaint or F.I.R. The word `criminal' both as defined in the ordinary dictionaries as well as in law dictionaries means a person who has been convicted or adjudged to be guilty of an offence. It, therefore, necessarily follows that a person against whom there are only allegations/accusation in the form of F.I.R. or complaint and on the basis of these allegations Proceedings are pending against him in a Court of law in which he is yet to be adjudged as guilty of the offence charged with, cannot be treated as a criminal, much less `a dangerous, desperate or a hardened criminal'."

7. This view was followed by my brother Mr. Justice Nasir Aslam Zahid, in Sanam Shah and 10 others v. The State reported in 1986 P Cr. L J 2947. The case (If Abdul Haleem v. The State reported in P L D 1986 Pesh. 92, also supports this proposition of law. This newly added proviso was also examined in Nazar Muhammad and 2 others v. The State reported in 1987 P Cr. L J 1754 and Mashooque and 2 others v. The State reported in P L D 1987 Kaf. 667 and the above view was followed. A Division Bench of this Court also examined this provision of law, although in different context, in the case of Gul Muhammad and 2 others v. The State reported in 1987 P Cr. L J 737, and observed that `the opinion that applicants were hardened, desperate or dangerous criminals could not be formed on the basis of inadequate information".

8. A contrary view was, however, taken in Muhammad Hanif v. The State reported in P L D 1986 Kar 427 and Gul Khan and others v. The State reported in P L D 1986 Kar.

629. While deciding a bail application during Sukkur Circuit, I had also followed these two decisions. The view taken in Gul Khan's case was, however, not approved by the Supreme Court and the applicants involved in that case were allowed bail. A reference of this order finds place in Mashooque and 2 others v. The State referred to above. The detailed order of the Supreme Court is still awaited.

9. Ordinarily the word `or' is used disjunctively. It is the duty of a Court to primarily adhere to the strict legal interpretation of the words used. The word `or' used in the fourth proviso to section 497 of the Code of Criminal Procedure, 1898, indicates an alternative. It, therefore, follows that a `hardened, desperate or dangerous criminal' need not be a previous convict. There is no better way of approaching the interpretation of a provision of law than to endeavour to appreciate the, general object that it serves and to give its words their natural i meaning in the light of that object. The primary duty of the Court is to find the natural meaning of the words used in the context in which they occur. The word `criminal' used in fourth proviso is, therefore, to be understood in its ordinary meaning, viz., a person involved in a crime. Clause (f) of section 110, Cr.P.C, may also be looked into with a view to find out the intention of the Legislature in using the words `desperate' or `dangerous' in the fourth proviso.

10. A person of desperate and dangerous character means a person, who has a reckless disregard of the safety and property of others. The characteristic of being a desperate and dangerous is a personal attribute and, therefore, the manner in which an accused person has conducted himself at the time of commission of offence is also an important consideration in arriving to a finding of this nature. The opinion of the Court to this effect, which is always tentative in nature can be formed on the basis of: (i) nature of accusation and conduct of accused at the time of alleged incident, (ii) previous record of the accused which may include his earlier prosecution, and (iii) material placed before the trial Court like reports of concerned police and jail authorities. It is the cumulative effect of all the three aspects that may finally determine a tentative opinion in this behalf.

11. Quite admittedly applicant Zulfiqar Ali is involved in eight other cases besides this case, while applicant Muhammad Bachal is facing trial in three other E cases excluding the one under consideration. In all those cases the applicants are on bail granted mainly on the ground of delay. .

12. The reasons which prevailed upon Honourable Judges of the Supreme Court of Pakistan, while deciding Criminal Appeal No. 27/K of 1986 are not before me. The Supreme Court of Pakistan is the highest Court in the judicial F oligarchy of Pakistan and even the obiter dicta of the Supreme Court would, due to the high place the Court holds in the hierarchy of Courts in the country enjoy a highly respected position as precedents. Respectfully following the above order, whereby the Supreme Court had granted bail to Gul Khan and others, I am of the G view that both the applicants are also entitled to the grant of bail on the ground of statutory delay.

13. On merits also the applicants have got a good case. All the P.Ws. including complainant and Mashirs have sworn in their affidavits exonerating both the applicants from the charge. The certified copies of these affidavits are on H record of Annexures `E' to `I'. This ground was considered in the cases reported as Shafqat Ali v The State 1979 P Cr. L J 174, Rehmat Ali and another v The State 1979 S C M R 30, Bagh and 2 others v. The State 1.984 P Cr. L J 3222 and Ghulam Qadir and another v The State 1984 P Cr. L J 3229 and the accused were granted bail on the strength of such affidavits.

14. In the result the applicants are entitled to the grant of bail, on both the scores. Bail is allowed to both of them in the sum of Rs.1,00,000 (rupees one lac) II each with P.R. of the like amount to the satisfaction of the trial Court. N.H.Q./Z‑112/K Bail granted.