1989 P Cr (PLP)

3. 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 of the Code of Criminal Procedure, 1898, 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 requirements of this proviso were satisfied. The case of Nazir Hussain v. Ziaul Haque 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, who were benefited by this proviso played havoc in the society. In order to meet this exigency the legislature qualified this 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."

4. The Legislature has, therefore, denied the concession of bail on the ground of delay to the following persons:‑ (i) a previously convicted offender; (ii) a person who, in the opinion of the Court is a hardened desperate or dangerous criminal.

5. The effect of the fourth proviso to section 497 of the Code of Criminal Procedure, 1898, 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 meaning 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/accusations 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 muchless a dangerous, desperate or a hardened criminal:'

6. This view, however, did not find favour in Muhammad Hanif v. The State reported in P L D 1986 Kar. 437 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.

7. The fourth proviso was examined by a Division Bench of this Court although in different context. I cannot do better than quoting the following observations:‑

"The learned Additional Advocate‑General was just able to give the aforesaid list of cases which perhaps indicate that in the F.I.Rs. lodged in the aforesaid cases the names of the applicants also appear as accused. Nothing has been brought on record to show as to what were the actual roles played by or parts assigned to the applicants according to the prosecution; whether any investigation by the prosecution agencies took place in any of the aforesaid cases; whether the applicants were sent up for trial in any case, whether any process had been issued by any Court against any of the applicants in any case or cases. It has been noticed that only crime numbers have been given and in no case the case number or the Court before whom such cases arc pending has been given. On the basis of the aforesaid scanty material comprising only the crime numbers and sections of the P.P.C. and/or Martial Law Regulation and nothing more, we, cannot form an opinion that the applicants arc hardened, desperate or dangerous criminals. Without placing adequate material on record on the basis of which the Court may form the opinion that the accused is a hardened, desperate or dangerous criminal, the prosecution cannot deprive the accused of the benefit of the third proviso to section 497(1), Cr.P.C.

8. My attention was also invited to an order of Mr. Justice Allahdino G. Memon, reported as Mashooquc and 2 others v. The State P L D 1987 Kar. 667 wherein a reference was made about the order of Supreme Court on this point in Criminal Bail Application No. 27 of 1986. The learned counsel for the applicant has placed a photo copy of a short order, dated 19‑1‑1987 before me, which reads as follows:‑

"For the reasons recorded separately this appeal is allowed with the result that the impugned order of the High Court is set aside with the direction that the appellants shall be released on bail on their furnishing one surety each in the sum of Rs.20,000 and on executing personal bond in the like amount to the satisfaction of the trial Court."

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 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. The construction that I have placed on the language of fourth proviso to section 497, Cr.P.C. seems to me in consonance with the intention of the Legislature.

12. The reasons which prevailed upon the 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 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 precedent. Respectfully following the above order whereby the Supreme Court had granted bail to Gul Khan and others, I am of the view that applicant Jumo is also entitled to the grant of bail. Bail, is therefore, allowed to him in the sum of Rs.50,000 with P.R, of the like 4;mount to the t satisfaction of the trial Court. H.B.T./J‑66/K Bail allowed.