1999 PLP 2643 (YLR)

(i) PLD 1986 Karachi page 437 and 629. (ii) PLD 1990 SC page

934. In reply, Mr. M. Sharif Tariq, the learned counsel for the accused‑respondents vehemently argued that on 3‑1‑1996 the case was fixed for 12‑2‑1996 and the file of the Trial Court remained with Shariat Court from 12‑2‑1996 to 7‑3‑1996. Thus, according to the learned counsel for the petitioner the delay of 23 days occurred instead of 64 days. He further contended that the learned counsel for the petitioner also miscalculated the period of delay from 7‑3‑1996 to 7‑4‑1996 because the case was not adjourned due to the absence of the counsel for the accused respondents but P.W.2 was also not present on the said date. He also pointed out that on 6‑2‑1997 the case was fixed for 10‑3‑1997. The file of Trial Court remained with Shariat Court till 16‑6‑1997, therefore, the delay of 98 days occurred. According to him the total period of delay goes to 121 days only. He also pointed out that the order of District Criminal Court, Mirpur, dated 1‑2‑1997 was challenged before Shariat Court by the petitioner on 13‑2‑1997 which was also assailed by the respondents Muhammad Jehangir, Muhammad Naseer, Muhammad Asif and Muhammad Tariq on 8‑3‑1997. The Shariat Court decided the revision‑petition on 13‑5‑1997. Therefore, as the order was challenged by both the parties, the total period of delay cannot be counted against the respondents. According to him the delay of only 23 days occurred in this respect. It was also alleged by the learned counsel for the respondents‑accused that the accused Ashiq was arrested on 13‑8‑1995, who was bailed out on 3‑2‑1997, thus, remained under‑arrest for 174 days and was again arrested on 13‑5‑1997. The said respondent was allowed bail on 29‑12‑1997, thus, the respondent again remained behind the bars for a period of 7 (seven) months and 16 days. Hence the total period of arrest goes to two years one month and two days. He further submitted that in case of Naseer Akber and Muhammad Asif, the Trial Court passed a detailed order which does not call for any interference. It was also argued by the learned counsel for the respondents that the points of previous convict or desperate or hardened criminals were neither raised before Trial Court nor stated in the revision‑petitions, therefore, cannot be allowed to be agitated at this stage. He also submitted that the prosecution has not produced any evidence about the fact of previous convict or of being respondents as desperate or hardened criminals. He suggested that the Trial Court may be directed to look into this aspect of the case and decide the matter afresh. In support of his arguments he relied upon the following authorities: (i) PLD 1986 Karachi page 224. (ii) 1993 SCMR page

525. In the light of the arguments addressed at the bar, I have carefully examined the record of the case and the authorities cited by the learned counsel for the parties. First of all, I would like to hold whether the accused‑respondents remained under‑arrest for more than two years, the statutory period required, with no fault of them and the trial of the case is yet to be concluded. In case of the respondents Jehangir and Tariq, I very much agree with the contention of the learned counsel for the respondents that on 3‑1‑1996, the case was fixed for 12‑2‑1996, therefore, no proceedings were required to be taken place during this period. Thus, the delay can only be counted from 12‑2‑1996 up to 7‑3‑1996 which comes to 23 days and not 64 days. Similarly the delay of one month from 7‑3‑1996 to 7‑4‑1996 did not occur only because of the absence of the counsel for the respondents‑accused, rather P.W. (2) was not available on the date fixed for the prosecution evidence. If the counsel for the respondent accused would have been present in the Court no progress in the trial was likely to be made. I also agree with this contention of the learned counsel for the respondents that on 6‑2‑1997 the case was adjourned to 10‑3‑1997 and the file was available and no proceedings wore required to take place during this period and the period of delay can only be calculated from 10‑3‑1997 to 16‑6- 1997 which goes up to 98 days, a total period of 121 days (Four months and one day). The dates of the arrest and the bail orders are admitted between the parties. The accused respondents were arrested on 31‑7‑1995 and granted bail on 30‑8‑1997. The continuous period of arrest of the accused‑respondents comes to two years and one month. But the Trial Court did not calculate the delay already occurred because of the respondents, as admitted by the learned counsel for the respondents say as 121 days, (four months and one day). It is pertinent to note that the bail application was moved on 26‑8‑1997 and notice to PP was issued for 29‑8‑1997. The Trial Court heard the arguments and disposed of the matter on 3‑8‑1997. No notice to the complainant or the counsel for the complainant was issued and, thus, the complainant was condemned unheard which is against the basic principle of justice. In case of issuance of a notice to the complainant, he would have been in a position to prove the delay occurred by the negligence or conduct of the accused‑respondents. The Trial Court did not take the trouble to look into the order sheet and to find out the negligence or delay on part of the respondents. The Trial Court also did not examine the identification certificate, appended with the file. Thus, if from the period of arrest two years and one month, the delay of 121 days (four months and one day) is deducted, the period of arrest goes up to one year eight months twenty-nine days. In these circumstances the required statutory period was not completed and the Trial Court passed the impugned order in a hasty manner against the admitted principle of law governing the bail matters, which cannot be upheld. As far as the case of the accused -respondent Ashiq Hussain is concerned, the respondent was not arrested on 13‑8‑1995 as contended by the learned counsel for the parties rather the remand form appended with the challan file of the Trial Court at page 95 shows that the respondent was arrested on 20‑8‑1995 and admittedly bailed out on 3‑2‑1997, thus, remained under arrest for one year five months and seventeen days. During this period the delay of 23 days occurred from 12‑2‑1996 to 9‑3‑1996 because of the respondent, which can be counted against the accused‑respondent Ashiq Hussain. The period of delay of 23 days, when deducted from one year five months and seventeen days period of detention, the period of arrest comes to one year four months and twenty four days. The accused‑respondent was again arrested on 13‑5‑1997 and was bailed out on 29‑12‑1997, thus, remained behind the bars for seven months and sixteen days. The total period of his first detention (one year four months and twenty four days if added in period of his second detention seven months and sixteen days), comes to two years and 10 days. It is also admitted between the parties that the trial has yet not been concluded. In this respect I do not agree with the contention of the learned counsel for the petitioner that the delay of the trial from 3‑2‑1997 up to 16‑6‑1997 may be counted against the respondent‑accused Ashiq Hussain. It will be appropriate to note that the bail order of District Criminal Court, Mirpur, dated 3‑2‑1997 was challenged in revision petition by the complainant Javaid Iqbal as no fault of the respondent. Therefore, the delay occurred between 3‑2‑1997 to 16‑6‑1997 cannot be counted against the respondent‑accused Ashiq Hussain. Thus, the discretion exercised in his favour by releasing him on bail needs no interference as the same is neither perverse nor capricious. Similarly the case of respondents- accused Muhammad Naseer Akber and Muhammad Asif is concerned, it stands on the same footing as in the case of the respondent Ashiq Hussain. In this respect the learned counsel for the petitioner half heartedly argued that the same delay occurs against the said respondents as in the case of respondents Jehangir and Tariq. As it has been held in earlier part of the judgment that the delay. of only 23 days occurs against the respondents from 12‑2‑1998 to 7‑3‑1996. The respondents were admittedly arrested on 30‑9‑1995 and were bailed out on 29‑10‑1997; thus, the respondents remained under arrest for a period of two years and twenty nine days. If the period of 23 days is deducted from the period of detention, the period of arrest comes to two years and six days and the trial has not been concluded. Therefore, the Trial Court rightly allowed the bail under third proviso to subsection (1) of section 497, Cr.P.C. The learned counsel for the petitioner also argued that the respondent- accused Muhammad Tariq has been previously convicted in a murder case, therefore, he is not entitled to bail on this ground also. But this fact has not been proved on the record. Identification certificate appended at page 76 of the trial Court file shows that two cases, (i) under sections 5 I.P.L., 147/148 and 149/P.C. (ii) under section 341/324, P.C. are pending .in the Courts against the respondent. No material has been provided by the petitioner to substantiate his arguments. It is also to be noted that the petitioner has not taken this ground in his petition, thus, cannot be allowed to argue it at this stage. Hence it is hereby repelled. The learned counsel for the petitioner further contended that the respondents are hardened, desperate and dangerous criminals, therefore, are not entitled to bail under fourth proviso to subsection (1) section 497, of Cr.P.C. It would be appropriate to reproduce fourth proviso as under to that its implication could easily be understood. Provided further the provisions of third proviso to this section shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who:‑‑‑ (a) in the opinion of the Court, is a hardened, desperate or dangerous criminal or involved in terrorism; (b) ................ (c) ................ The perusal of the above proviso makes the position very clear. The above mentioned fourth proviso was added by the Code of Criminal Procedure (Second Amendment) Ordinance (XXXII) an 26‑12‑1983 in Pakistan, as it came into force on 3rd May of 1997 through Ordinance, (XVIII) of 1997 which later on became an Act of Legislative Assembly. In Pakistan the amending Ordinance postulates that the fourth proviso shall not apply to a previously convicted offender but in (AK) the fourth proviso requires "that the provisions of the third proviso to this section shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who‑‑". which means that every previous convict is not disentitled for bail in (AK) but only a previously convicted offender for an offence punishable with death or imprisonment for life. I very much agree with the contention of the learned counsel for the petitioner that Court can form an opinion on the basis of material produced by the prosecution in addition to any other material E to hold that an accused is a hardened, desperate or dangerous criminal. But the burden lies upon the shoulders of the prosecution to prove that the material produced by it is sufficient to form such an opinion. In this respect the view formed by Justice Sajjad Ali. Shah in Muhammad Hanif v. The State (PLD 1986 Karachi 437) was upheld by Supreme Court of Pakistan in Mondar and others v. The State (PLD 1990 SC 934), whereby it was held that the Court can form an opinion to disentitle a person to the privilege of release on bail on the ground of statutory delay but such opinion must be based upon the material available in the case under trial as well as any other material which may be produced by the prosecution to help the Court in formation of such opinion. It was also held that mere factum of registration of cases is not sufficient to disentitle a person from the statutory right of his bail. The case‑law referred by the learned counsel for the respondents titled Rahim Bux and others v. The State (PLD 1986 Karachi page 224) has also been discussed in the above judgment of the Apex Court of Pakistan. In support of his contention the learned counsel for the respondents also relied upon Jalal v. Allah Yar and another (1983 SCMR P.525) but the case‑law supports the version of the petitioner to this extent that the Court can form an opinion on the basis of material made available by the prosecution. In the said authority Muhammad Hanif's case (PLD 1986 Karachi P.437) and Mondar's case (PLD 1990 SC 937) were discussed in detail and the propositions of law enunciated in the above two judgments were upheld. Now the question is whether the respondents Muhammad Naseer Akbar, Muhammad Asif and Ashiq Hussain are not entitled to bail under fourth proviso to subsection (1) of section 497, Cr.P.C. We refrain to discuss the case of Muhammad Jahangir and Muhammad Tariq in this respect, because it has already been held that the ground of statutory delay of two years is not available to them. According to F.I.R., it has been stated that Muhammad Naseer Akbar fired upon Mst. Munza Bi P.W.(9) which hit upon her and she fell down. The accusation against Muhammad Asif and Ashiq Hussain is that they have also been firing, resultantly Muhammad Naveed, Mst. Aziz Jan and Mst. Sandal Bi sustained injuries. It is to be noted that the prosecution has withheld the evidence of Mst. Munza Bi P.W.(9) vide Trial Court order, dated 3‑10‑1997. The prosecution has appended the identification certificates with the file, which show that a case under section 15, Islamic Penal Laws Act, 1974 is pending in the Court against Naseer Akbar respondent. As far as the case of Muhammad Asif is concerned, two cases under sections 13/20/65 A.O. and 15, I.P.L. are pending in the Court and a compromise has been entered upon in a case registered under sections 452 and 307/34, P.C. against accused respondent. There is no case pending against Ashiq Hussain except the present one. All the abovementioned respondents‑accused have not been proved to be previously convicted. The mere registration of the cases against the said respondents does not render them disentitled to the right of bail as held in the earlier part of this order. The prosecution could not produce any material or evidence whether the accused respondents are hardened, desperate or dangerous criminals, in order to show that I their case falls within the prohibitions contained in the 4th proviso to subsection (i) section 497 of Cr.P.C. It was also not established by the prosecution that the respondents‑accused Naseer Akbar, Muhammad Asif and Ashiq Hussain killed the two deceased persons and other members of the family. In this respect a reference can be made to Jalal v. Allah Yar and another I (1993 SCMR 525). Considering all the facts and arguments mentioned above, in my opinion the case of the respondents‑accused Naseer Akbar, Muhammad Asif and Ashiq Hussain does not come within the mischief of the fourth proviso to subsection (1) of section 497, Cr.P.C. It has also been proved that the abovementioned respondents‑accused remained in Jail as under trial prisoners for more than two years and the case has not concluded. Therefore, the Trial Court rightly admitted them to bail under third proviso to subsection (1) of section 497, Cr.P.C. At this stage I would like to add that when the condition of the statutory period as fulfilled the bail becomes the right of the accused provided his case does not fall under fourth proviso to subsection (1) of section 497, Cr.P.C. This statutory right cannot be curtailed by any other argument or evidence under the discretionary powers of the Court to grant bail. In this respect a reference can be made to Zahid Hussain Shah v. The State (PLD 1995 SC 49) and Muhammad Riaz v. The State (1998 PSC (Cri.) 541 SC of AJK). In the light of above mentioned discussion the respondents‑accused Muhammad Jehangir and Muhammad Taria, failed to prove that the statutory period of their detention was more than two years and the trial was not concluded. Therefore, they were not entitled to the concession of bail under the third proviso to section 497(1), Cr.P.C. The Trial Court exercised its discretion in an arbitrary and capricious manner against the admitted principle of law governing the bail matter. Thus, the impugned order, dated 30‑8‑1997 cannot be upheld. As far as the case of the respondents- accused Muhammad Naseer Akbar, Muhammad Asif and Ashiq Hussain is concerned, the Trial Court passed the impugned orders, dated 29‑10‑1997 and 13‑3‑1998 in a legal fashion which does not call for an interference by this Court and are upheld. For the reasons listed above, I hereby accept the Revision Petition No. 128 of 1997, set aside the order of District Criminal Court, Mirpur, dated 30‑8‑1997. The Revision Petitions Nos.155 of 1997 and 19 of 1998 have no merits. hence dismissed. H.B.T./71/FSC(AJK)