P L D 1987 Karachi 667 (PLP)

Proviso III to subsection (1) of section 497, Cr.P.C. reads as under:

"Provided further that Court shall except where it is of opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf, direct that any person shall be released on bail. (a)

(b)? who, being accused of an offence punishable with death, has been detained for such offence for a continuous period exceeding two years and whose trial for such offence has not concluded. The IVth proviso to subsection (1) of section 497, Cr.P.C. on which the learned counsel for the State has relied upon reads as under:- "Provided further that the provisions of third proviso to this subsection shall not apply to previously convicted offender, or to a person who in the opinion of the Court is hardened desperate or dangerous criminal. In a case of Rahim Bux and others v. The State reported in PLD 1986 Karachi 224, it was held by this Court that:- "Right of accused to be enlarged on bail in accordance with provisions of proviso III to subsection (1) of section 497 Cr.P.C. is no more a mere discretion of the Court but the accused is entitled as of right. to get bail, if the requirements of proviso III to subsection (1) of section 497, Cr.P.C. are satisfied. In this reported case a decision of the Hon'ble Supreme Court in the case of Nazir Hussain v. Ziaul Haq 1983 SCMR 72 was relied upon." In the case of Sanam Shah and 10 others v. The State 1986 PCr.Ld 2947 (this was a case in which as many as ten persons were killed). Case of Rahim Bux v. The State; reported in P.L.D. 1986 Karachi 224 was relied upon and bail was granted. In the case of Gul Khan and two others v. The State PLD 1986 Kar. 629, bail was refused to the applicants on the ground that the offence committed by the accused was heinous one and they could be said. The applicants went before the Hon'ble Supreme Court and the leave was granted by their Lordships of the Supreme Court on the ground that there is a conflict of opinion in the High Court as to interpretation of IVth proviso of section 497, Cr. P. C . this decision is reported in 1986 S C M R 1825. It may be stated here that the above Cr. Bail Application No.27 of 1986 was ultimately allowed by their Lordships of the Supreme Court, the order of the High Court was set aside, and the appellants were released on bail. In view of the above decision, it is clear that the IV proviso to subsection (1) of section 497 Cr.P.C. will apply if the applicant accused is a previous convict, or he is hardend, desperate, or dangerous criminal. In the present case there is no allegation that the applicants were previous convicts or that they had committed such crimes in the past. Even the report of the S.H.O. Dhamarah dated 23-6-1987 shows that except crime No.54 of 1984, there is no other record available at the police station against the applicants. The report of S.H.O. taluka P.S. Larkana shows that except crime No.54 of 1985 there is one more case pending against accused Gulab under section 13-D of the Arms Ordinance. In view of the above factual and legal position, the nature or seriousness of the offence committed by the applicants in the case in hand cannot deprive the applicants from the statutory right of bail granted to them by proviso III to subsection (1) of section 497 Cr.P. C. Under these circumstances, I am of the considered view that the applicants are entitled to bail, and therefore, I direct that the applicants shall be released on bail on furnishing surety in the sum of Rs.50,000 each and P.R. Bond in the like amount to the satisfaction of the trial Court. M.B.A./M-217/K???????????????????????????????????????????????????????????????? Bail granted.