1998 P Cr (PLP)

1987 PCr.LJ

737. S. 497‑‑‑Penal Code (XLV of 1860), S.392‑‑‑Bail, grant of‑‑‑Ground of delay in trial of more than one year although available to applicant and specifically taken in earlier bail application yet not pressed‑‑‑Such ground, held, could not be considered as afresh ground nor could be made basis of any subsequent application in circumstances.' and in view of order of learned District Judge, Malir passed earlier accused is not entitled to concession of bail. Hence bail application is hereby rejected. " I have given my anxious thoughts to the matter at hand. The third proviso to section 49" was essentially introduced in 1979 to strike greater certainty in disposal of causes. Before such amendment a lot was left to the discretion of the Court when entertaining bail applications on grounds of delay. The Court could then examine the facts and circumstances of each matter to balance various factors before coming to a conclusion as to whether the accused would be entitled to bail. However, after introduction of the third proviso such discretion in the Court has been taken away. The Honourable Supreme Court in Zahid Hussain Shah v. State PLD 1995 SC 49 relying upon its earlier decisions in Wazir Khan v. State 1983 SCMR 427 and Nazir Hussain v. Zia‑ul‑Haq and others 1983 SCMR 72 came to the conclusion that the right of an accused to be enlarged on bail under the third proviso to section 497(1), Criminal Procedure Code is a statutory right which cannot be denied under the discretionary power of the Court to grant bail. The right of an accused to get bail under the third proviso of section 497(1) of the Criminal Procedure Code is, thus, not left to the discretion of the Court but is rather controlled by such provision. The bail under the third proviso to the said section 497(1), Criminal Procedure Code can only be refused to an accused by the Court where it is shown that the delay in the conclusion of the trial had occasioned on account of any act/omission of the accused or any other person acting on his behalf. Additionally, the concession under the third proviso to section 497(1) of the Criminal Procedure Code would not be available and the Court can refuse bail if the provisions of the fourth proviso to section 497(1) of the Criminal Procedure Code are attracted i.e., the accused is a previous convict and in the opinion of the Court is a hardened, desperate or dangerous criminal or involved in any act of terrorism. Such state of law is fully endorsed by other decisions including Asif Ali Zardari v. State 1993 PCr.LJ 781, Muhammad Azam v. State 1995 PCr.LJ 864 and Jaggat Ram v. State 1997 SCMR

361. In Jaggat Ram the aspect that where an accused is involved in any act of terrorism he shall not be entitled to bail even on grounds of delay has been categorically under‑scored. The true import of Jaggat Ram is that persons who are involved in acts of terrorism are to be treated at par with persons who are hardened, desperate and dangerous criminals. Accordingly, the fourth proviso to section 497(1) would come into play to refuse bail despite allegations of one‑sided delay on the part of the prosecution. In the present case the learned counsel for the applicant has vehemently contended that the applicant and his counsel are not responsible for causing any delay in trial and accordingly the accused derives a statutory right to be enlarged on bail. He further contended that the trial Court has erred in applying the law laid down in Gul Muhammad v. The State 1987 PCr.LJ

737. On the other hand, the learned counsel for the State after perusal of the case diaries has frankly conceded that the accused is not a previous convict and both the accused and his 6 counsel are not responsible for causing any delay in trial but since the accused was caught red‑handed on the spot the Court should not grant him bail. I have already cited the law that would be applicable to the prose"' controversy. It is true that on grounds of delay as envisaged by the third proviso of section 497(1) the accused derives a statutory right to be enlarged on bail but such right is derogated in case the accused is a hardened, dangerous or desperate criminal or is involved in any act of terrorism. In order to ascertain the plausibility of the argument advanced ‑by the. State, this Court will have to determine as to whether the crime of car snatching through force and intimidation shall amount to terrorism. In order to ascertain the true connotation of the term "terrorism" the following are being referred:‑‑‑ (a) Black's Law Dictionary, 1968, Revised Fourth Edition at page 1643:‑‑‑ "Terror. Alarm: fright; dread, the state of mind induced by the apprehension of hurt from some hostile or threatening event or manifestation; fear caused by the appearance of danger. In an indictment for riot it must be charged that the acts done were 'to the terror of the people'. See Arto v. State, 19 Tex. App. 136." (b) Chambers' 20th Century Dictionary, 1983, New Edition, at page 1335:‑ "Terror, n. extreme fear, a time of, or government by, terrorism; an object of dread; one who makes himself a nuisance ...." (c) Webster's Collegiate Thesaurus, 1988, at page 579:‑‑‑ "terror n. syn Fear 1 alarm, consternation, dismay, dread, fright, horror, panic,, trepidation trepidity rel. are fearfulness. (d) Legal Thesaurus by W.C. Burton at page 999:‑‑‑ "Terror‑fear, panic, phobia, trepidation" "Terrorism anarchy, lynch law" "Terrorist‑assailant, criminal" "Terrorize‑bait (harass), coerce, endanger, frighten, harass, intimidates, threaten. " (e) Eugene v. Walter has defined terrorism as a process of terror involving elements: 'the act or threat of violence, the emotional reaction and the social effects, (Walter, E.V., Terror and Resistance, New York, Oxford University Press, 1977, p. 14. (t) R.K. Sinha has defined terrorism as the use of violence when its most important result is not only the physical and mental damage to the direct victims but also the psychological effect produced on someone else. (R.K. Sinha; Crimes Affecting State Security) Deep & Deep Publications, New Delhi. A scrutiny of the above definitions would reveal that acts of terrorism cover actions which cause or are calculated to cause alarm, fright, dread, panic, horror, fearfulness etc. Car snatching at gun point is covered by such definition of terrorism. We are all witnesses to a decay and decline in the law and order situation coupled with a hike in car, snatching through show of force by individuals or mobs. The crime of car snatching and certain others have become a menace to the society and we are all hostages to such criminals. Though such crimes are directed against individuals who are the victims but in a wider context they affect the society at large. Car‑snatching is, thus, a crime against the society in view whereof the Court has to be cautious in granting bail as mandated by the Supreme Court in Imtiaz Ahmed v. The State PLD 1997 SC

545. In my humble opinion, the applicant, in the present case, was caught red‑handed after a police car chase. He is involved in a crime pertaining to car snatching which is an act of terrorism affecting the society at large. Thus, pressing into service the dictum of the Supreme Court in Jaggat Ram I decline to grant him bail. The present application is, thus, dismissed. However, directions are issued to the learned trial Court to dispose of the entire trial expeditiously within four months. It is further observed that the observations hereinabove are only of a tentative nature and should not influence the learned trial Judge at the trial. H.B.T./M‑266/K Application dismissed.