P L D 1986 Karachi 224 (PLP)

This order will govern the disposal of seven connected Bail Applications Nos. 330 to 336 of 1985. These applications are filed by the accused/appli cants Rahim Bux son of Ghtilam Hyder. Liaquat son of Ghulam Ali. Moula Bux son of Ellahi Bux, Ghulam Akbar son of Ellahi Bux, Abdul Karim son of Ahmed and Deedar Ali son of Ali Nawaz. All the six accused are jointly facing trial in a case which has been challaned against them under sections 302, 395, 342,

332. P P.C. and 13‑D, Arms Ordinance. There are six other separate cases registered against them (Crimes Nos. 149 to 154) under section 13‑D of the Arms Ordinance. The bail is sought by the applicants on the sole ground that. they have remained in detention as under‑trial prisoners for over two years. The learned trial Judge though found in his bail order that the applicants are continuously in detention for about 4J years and are not responsible for the delay in the trial. yet he refused to enlarge them on bail, in view of the aewly added fourth proviso to subsection (1) of section

497. Cr P. C. which has been added by Ordinance XXXII of 1933 on 26th December. 1983 and reads as follows :‑ , "Provided further that the provisions of the third proviso to this sub section shall not apply to a previously convicted offender or to a person who, in the opinion of the Curt is a hardened. desperate or dangerous criminal." While refusing bail to the applicants on the ground that they are hardened and desperate criminal, the learned trial Judge held as follows :‑ "The accused are alleged to have caused death of two persons and causing injuries to some police personnel while the deceased persons were being taken in police guard to Sukkur jail after attending the Court of Sessions at Shikarpur. They also had alleged snatched the rides from the police party. The facts and circumstances of this case clearly show that the applicants/accused air hardened and desperate persons. In view of all these facts I do not consider it fit case for bail and consequently I dismiss the bail applications." It is clear from reading of the above order of learned trial Judge that he formed the opinion that the applicants are hardened and desperate persons on the basis of accusation made against them in the F.

1. R. Without going into the argument whether the material on which the learned trial Judge formed the opinion that the applicants are hardened and desperate criminals was sufficient or not, the present applications can he disposed of on the short ground that the applicants could be termed as hardened, desperate or dangerous criminals within the meaning of fourth proviso to section 497(1), Cr. P C.. I may mention here that the fight of accused tot be enlarged on bail in accordance with the provisions of third proviso to A subsection (1) of section 497, Cr. P. C. is no more a mere discretion of the Court but the accused is now entitled as of right to get bail if the require ments of third proviso to section 497(1), Cr. P. C. are satisfied. I am fortified in my view by the pronouncemet of Supreme Court in the case of Nazir Hussain v. Ziaul Haq (1983 S C M R 72). The following observations from Nazir Hussain's case are reproduced here with respect :‑ "The ground of delay for grant of bail in cases falling within the pro hibition contained in subsection (1) of section 497, Cr. P. C. before the effective amendment, was undoubtedly controlled by the dis cretion of the Court concerned. The facts varied from case to case and accordingly the discretion exercised was creating some anomalies That is why the Legislature intervened and the law was made more certain. One of the changes affected in the statute from the previous practice in the exercise of discretion, was that the grant of bail on expiry of certain specified period and under certain conditions was made a matter of right and not only of discretions We do not agree with the learned counsel that the use of the word 'shall' in the third proviso, is in the meaning of `may'. Learned counsel failed to notice that while in first proviso the word `may' has been used, in the second and third the word 'shall' has been used with a view to highlight it. Moreover, reading `may' for the word 'shall' in third proviso would be in large majority of cases to the detriment of accused and his liberty, when it become due in the context of bail. We accordingly repel the argument of the learned counsel and hold that word `shall' in third proviso will have to be read in its ordinary sense. That being so, there is nothing in the entire proviso, its main part as also sub clause (b) to show the grant of bail on ground of delay in cases covered thereunder has been left (in a general way) to the discretion of the Court. We also do not agree with the argument that the mater being entirely of the discretion of the Court it is empowered to take into account the expected/ apprehended delay." The clear effect of the newly added fourth proviso to section 497(1), Cr. P. C. is to restrict the above right of an accused to get bail under the third proviso to section 497, Cr. P. C. in certain cases. It is also quit B clear from reading of the fourth proviso that it is enacted as a proviso/ exception to the third proviso. Therefore, in order to interpret correctly the fourth proviso, the third proviso is to be treated as the main enacting clause. It is needless to mention here that where a proviso is added to an C existing enacting clause which contained general object and language, the proviso is‑ to be construed strictly and takes no case out of the enacting clause unless it falls strictly with n the language and spirit of the proviso. [See United States v. Dickson ((1841) 15 Pat. 141)]. A careful consideration of fourth proviso will show that the concession of bail which is available to an accused under the third proviso to section 4970), Cr. P. C. could be denied on the ground that he is a previously convict offender or a person who in the opinion of the Court is a hardened, desperate or dangerous criminal. In the present cases I am only concerned herewith the latter' part of the fourth. proviso which empowers the Court to deny bail to the accused under the third proviso or the ground that he is a hardened, desperate or a dangerous criminal in the opinion of Court. The three adjectives, hardened, desperate or dangerous used in the fourth proviso are to be read with the word "criminal". In my view, therefore, in order to ascertain the real object of Legislature in enacting the fourth proviso the true meaning of the word criminal" has to be discovered. The word "criminal" is not defined in the Criminal Procedure Code and it is not contended before me that it is used in any peculiar or particular sense. I will‑ therefore, refer here the various dictionary meanings of the word "criminal". In the Concise Oxford English Dictionary it is defined as : ‑ "Criminal of (nature of) crime, guilty of crime." In Webster's New World Dictionary (College Edn.), it is defined as follows :‑ "having the nature of crime, wrong, immoral. (2) involving or relat ing to crime. (3) guilty of crime. n. a person guilty of, or legally convicted of a crime." In Walton Law Lexicon the expression "criminal" is defined as "Some person indicted for a public offence and found guilty" In Black's Law Dictionary (5th edn.) "criminal" is defined as "a person who has committed a criminal offence ; one who has been convicted of a crime ; one adjudged guilty of crime." In Black's Law Dictionary in addition to the definition of word 'criminals' the expression "dangerous criminal" is also defined separately, It is as follows :‑ "as one convicted of particularly henious crime or one who has been escaped or tried to escape from penal confinement by use of force of an aggravated character." Similarly the words "desperate" and "hardened" used in the fourth proviso are also not denned in the Criminal Procedure Code or in the Penal Code. Therefore in accordance with the accepted rule of interpre tation these words are to be construed according to their ordinary dictionary meanings. `Desperate' is defined in the Concise Oxford Dictionary as follows : ‑ "as leaving no or little room for hope; extremely dangerous or serious, reckless from despair, violent, lawless, staking on a small chance." The word "hardened" is similarly defined in the same dictionary as "may or become bard, callous or robust." On a careful reading of the fourth proviso in the light of the above dictionary meanings of the expressions, desperate, hardened and dangerous J 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 complain or F. I. R. The word "criminal" both as defined in the ordinary diction aries 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 ate only allegations/accusations in the form of F.

1. R. or complaint and on the basis of these allegations pro ceedings 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 criminal, muchless a dangerous, desperate or a hardened criminal". In the case before me none of the accused persons have been convicted so far of any offence. It is also not contended that they have been adjudged to M be criminal in any proceedings earlier. In these circumstances, in my view the learned trial .fudge was not justified in declining concession of bail t these persons under the third proviso to section 497, Cr. P. C. merely o the basis that the case registered against there disclosed allegations o serious nature or that at the time of commission of alleged offence the applicants bad allegedly shown some degree of anxiety or desperation. The learned A. A.‑G., however, very strenuously urged that in order to disentitle a person to the grant of bail under the third proviso, it ;a enough if he is found by the Court dealing with the bail application that he is a dangerous, desperate or hardened person. The argument of learned A. A.‑G. loses sight of the fact that the expression used in the fourth proviso is not desperate, hardened or dangerous person but desperate, hardened or dangerous criminal. The two words, namely "person" and "criminal" are not interchangeable and carry different meanings in the English language. The learned A. A.‑G. in support of his contention referred to an order passed by a learned Single Judge of this Court in Criminal Bail Application No. 600 of 1985, dated 0‑6‑1985 but that case is of no assistance as there is no discussion while declining the bail to the accused. Apart from it in that case the bail was not declined solely on the ground that the applicant was considered to be a dangerous, desperate person but also on the ground that delay occurred in the conclusion of the trial was found attributable partly to the applicant. Therefore, the cases cited by the learned A. A.‑G. is also distinguishable on facts. In the present case the applicants are in jail as under‑trial prisoner for last 41 years. There is no allegation against them that they are respon sible for the delay in trial in any manner. In these circumstances, I am of the view that they are entitled to bail under the third proviso to section 497, Cr. P. C. I accordingly admit all the six accused/applicants to bail in the sum of Rs. 50,000 each with one surety and P. R. in the like amount to the satisfaction of the trial Court in the case under sections 302, 332, 342 and 395, Y. P. C. and 13‑D of Armes Ordinance‑and Rs. 10,000 each in case under section 13‑D Arms Ordinance. M. Y. H. Bail allowed.