P L D 2002 Supreme Court 46 (PLP)

RANA BHAGWANDAS, J.‑‑‑Petitioner Fida Hussain, one of the accused in Crime No.459 of 1997, registered at Police Station Saddar, Dera Ghazi Khan, under sections 302/34, 377, P.P.C. read with section 12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 seeks leave to appeal against the High Court order dated 27‑7‑2001, passed in Criminal Miscellaneous No.405‑B of 2001.

2. Complainant Bashir Ahmad on 22‑10‑1997 lodged a report to the effect that he was an employee in Health Department as was on tour with an Inspection Team in Fortmoenro, on 21‑5‑1997, when at about 9‑00 a.m. he received a telephonic message that his son had died on account of train accident. He immediately rushed to the hospital where his brothers namely Nazir Ahmad and Munir Ahmad, alongwith others, were present and told him that dead body of his son Kaleem Ullah aged about 17/18 years was lying on the railway track. The deceased had injuries on his head and his right arm was completely severed. Local police had drawn the proceedings under section 174, Cr.P.C. However, the Medical Officer, who conducted post‑mortem examination did not give any finding with respect to the cause of death, as he had sent different parts of the organs as also swabs of the deceased to the Chemical Examiner for detection of poison and semen. The complainant came to know that a day before the occurrence, the deceased had told his uncle Nazir Ahmad that he was going with his friend Muhammad Ismail (co‑accused) to the workshop owned by Mechanic Rafique. Later on he accompanied Muhammad Ismail on motorcycle towards Dera Ghazi Khan where he was seen by Muhammad Bilal in the company of the petitioner on the road side. He was thereafter seen going towards a hotel and it had come to light that the accused persons were engaged in committing carnal intercourse with innocent boys. In his complaint addressed to S.S.P., Dera Ghazi Khan, he complained that petitioner' Fida Hussain and co‑accused Muhammad Ismail had made extra judicial confession before Nazir Ahmad (brother of the complainant) and Hafiz Allah Wasaya, relating to commission of sodomy on the deceased followed by his murder and throwing away his dead body on the railway track. After a preliminary inquiry into his complaint, police incorporated the same in the F.I.R. Book under the orders of S.S.P.‑ During the course of investigation police recovered blood‑stained stone and a golden ring owned by the deceased from the person of co‑accused Muhammad Ismail on 14‑11‑1997 while the petitioner led to the recovery of a wallet from the upper storey of the house owned by third accused namely Abdul Ghafoor, who was declared innocent by police and not sent up for trial.

3. Challan was received, by the learned Sessions Judge, Dera Ghazi Khan, who entrusted the case to an Additional Sessions Judge, Dera Ghazi Khan for trial. It appears that co‑accused Abdul Ghafoor was summoned by the trial Court and arrayed as accused. Later, complainant Bashir Ahmad moved an application before the Special Court for Anti‑Terrorsim for summoning the case from the Court of Additional Sessions Judge but as the later did not transfer the case, he was advised to approach the High Court. Accordingly, he filed Writ Petition No.6883 of 1998 before the Lahore High Court, Multan Bench which, by its order dated 6‑8‑1998, transferred the case to the Special Court constituted under Anti‑Terrorism Act, 1997 at Dera Ghazi Khan for trial in accordance with law. Co‑accused Abdul Ghafoor, being dissatisfied, challenged the order of the High Court before this Court in C.P.L.A. No. 1425‑L of 1998, in which leave was granted on 1‑10‑1998 to consider whether after the deletion of item‑iv from the Schedule to the Anti‑Terrorism Act, 1997 through. amendment therein by Notification No.SRO‑1237(1)/97, dated 13th December, 1997, Anti‑Terrorism Court was left with the power to try the offence. With the grant of leave, further proceedings in the case before the Anti‑Terrorism Court were stayed with a direction to the office to fix the appeal for hearing by the end of October, 1998, after obtaining orders from the learned Chief Justice. However, this appeal could not be fixed/heard for nearly 3 years and was allowed by this Bench through an order dated 20‑9‑2001, setting aside the order of the High Court and entrusting the case to an Additional Sessions Judge, Dera Ghazi Khan for trial at an early date.

4. Petitioner was arrested on 21‑11‑1997. His application for grant of bail was dismissed by learned Sessions Judge, Dera Ghazi Khan on 13‑2‑1998. Where after he approached the Lahore High Court for grant of bail, which was dismissed on merits on 22‑6‑1998. He moved second and third application for bail before the High Court which were, however, dismissed as not pressed and withdrawn. His plea for bail on merits was dismissed by this Court on 28‑4‑1999. In the meanwhile, co‑accused Muhammad Ismail approached this Court in Criminal Petition No.641‑L of 2000 for his release on bail, which was allowed by a Bench of this Court vide order dated 17‑1‑2001. Petitioner once again approached the Lahore High Court; Multan Bench for his release on bail on statutory ground but a Division Bench of the High Court vide order dated 27‑7‑2001 declined the same. Hence this petition for leave to appeal.

5. Sh. Khizar Hayat, learned Advocate Supreme Court for the petitioner urged that apart from the facts that, on merits there is only circumstantial evidence indicating the deceased having been lastly seen in the company of the petitioner; F.I.R. being belated for more than five months; the medical report on the basis of Chemical of more than 5 months suggesting prosecution case having been found to be false as against co‑accused Abdul Ghafoor, his client is at least entitled to grant of bail on the statutory ground as also the principle of consistency.

6. There is no representation on behalf of the State despite clear notice to the Advocate‑General and publication in the weekly cause list.

7. It seems that proceedings before the trial Court could not take off for the reason that these were stayed by an order of this Court, passed as far back as on 1‑10‑1998. We have not been able to discern any valid ground for non‑listing and/or pendency of the connected Civil Appeal against the order of transfer of the case for almost three years. In all fairness, office should have been vigilant enough to give priority to this case, which involved a very short point and was disposed of on the first hearing within a short span of hearing only yesterday. Pendency of cases involving heinous crimes like murder after commission of an offence of Zina/sodomy is not only objectionable but also shocking and alarming. In our view such cases ought to have been listed on priority basis and brought to the notice of learned Chief Justice for directing expeditious disposal thereof by an appropriate Bench in that regard.

8. Section 497(1), Cr.P.C. empowers the trial Court to release an accused charged with a non‑bailable offence and falling within the prohibitory clause if the Court is of the opinion that there are reasonable grounds for believing that the accused may not be guilty of the offence charged. Third proviso to subsection (1) stipulates that if the trial against an accused involved in an offence not punishable with death, is not concluded within one year and of an accused charged with an offence punishable with death, has not been concluded within a period of two years, he shall. be released on bail except where the Court is of the opinion that the delay in the trial has been occasioned by an act or omission of the accused or any other person acting on his behalf. There is, however, a rider clause contained in fourth proviso postulating that the provisions of third proviso to this subsection 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.

9. Conversely, Mr. Dil Muhammad Tarar, learned Advocate Supreme Court for the complainant strongly opposed the grant of bail contending that, though the petitioner was advised by the High Court to approach this Court for early decision of Civil Appeal No. 1482 of 1998, he remained silent in that regard. According to the learned counsel, he moved the Lahore High Court thrice for post‑arrest bail on merits. While his first application was dismissed on merits, his two successive applications were dismissed after lengthy hearing as not pressed as the Court was not inclined to accede to his prayer. Learned counsel urged that the petitioner is not entitled to the concession of bail, he being a hardened, desperate and/or dangerous criminal within the meaning of fourth proviso to section 497(1), Cr.P.C. Mr. Tarar further submitted that the petitioner not only joined hands with the co- accused in taking away the deceased, a young boy of 17/18 years; indulged in an anti‑social offence of sodomy but also committed the murder of the deceased in a brutal way and with a view to destroy the evidence threw the dead body on railway track. Learned counsel was of the view that the callous nature of the manner in which the offence was committed by the petitioner, he was not entitled to the concession of bail, which was rightly declined notwithstanding the circumstance that proceedings of the case were stayed by this Court.

10. While replying, Sh. Khizar Hayat, learned Advocate Supreme Court for the petitioner strongly urged that petitioner is neither a previous convict nor a hardened, desperate or dangerous criminal. There is absolutely no material available with the prosecution tending to show that the petitioner was not entitled to the concession of bail within the purview of third proviso, which is controlled by fourth proviso to subsection (1) of section 497, Cr.P.C. He referred to Zahid Husain Shah v. State PLD 1995 SC 39 and Sher Ahmad v. State 1995 SCMR 1944 wherein the doctrine contained in third and fourth provisos to subsection (1) (ibid) was reiterated that bail under the provisos to section 497(1), Cr.P.C. can also be refused by the Court if the case of an accused falls thereunder. It was held that in all other cases, Court must grant bail. In the case of Sher Ahmed (supra) proceedings before the trial Court had been stayed by the High Court and the case against the accused did not fall within the prohibitory clause of section 497(1), Cr.P.C. It was ruled that the accused could not be detained in judicial lock up without trial for indefinite period and was admitted to bail

11. In Moundar v. State PLD 1990 SC 934 the question of law, which required determination, was the true interpretation and meaning of the expression "hardened, desperate or dangerous criminal" as it occurs under the proviso to subsection (1) of section 497, Cr.P.C. Zafar Hussain Mirza, J. (as his Lordship then was), speaking for the Full Bench, after a detailed and elaborate discussion of the question involved, held as under:‑‑ "The facts and circumstances of the prosecution case in which the accused person seeking release on bail is facing trial can be taken into consideration. The proposition that a finding in a criminal trial can only be reached upon the assessment of entire evidence produced in the Court, is inapplicable, insofar as the opinion reached by the Court for purposes of the 4th proviso has nothing to do with the findings of the Court at the trial. Indeed the conclusion drawn for the purpose ‑of disposal of a bail application cannot be used to the prejudice of the accused as the same are tentative in nature. However, there is no justification for the argument that such an exercise undertaken by the Court, violates the principle that an accused person is presumed innocent until proved otherwise. In subsection (1) of section 497 the Legislature has already empowered the Court even before the commencement of the trial to make a tentative assessment of the evidence collected against an accused person or likely to be produced in the trial against him, in order to reach the conclusion whether there appears a reasonable ground for believing that he has been guilty of an offence punishable with death or life imprisonment or imprisonment for 10 years. The provision under consideration here is a proviso to the same subsection, and therefore, it will be reasonable to construe it in the same manner authorizing a Court to take into determining whether the accused is a criminal of the categories prescribed therein. Of course the Court can take into consideration and indeed in most of the cases it will take into consideration other materials produced by the prosecution in order to show that the case falls within the prohibition contained in the 4th proviso. "

12. In the peculiar facts and circumstances of the case, submission of the learned counsel is not without any substance, but we are conscious of the rule of consistency, which must be followed in order to maintain balance and' the doctrine of equality before the law. Since co‑accused Muhammad Ismail has been admitted to bail by a Bench of this Court, in similar circumstances and on the same charge, it would not be just, proper and reasonable to decline bail to the petitioner. In the perspective of third proviso (ibid), we may further observe that the petitioner cannot be detained in jail for indefinite period for the act of the Court in that there was a status quo for almost three years. It is well‑settled that no person shall suffer for the act of the Court. Since the proceedings were stayed at the instance of co‑accused Abdul Ghafoor and this Court had itself ordered early hearing of the appeal, the petitioner cannot be found at fault for the delay, as suggested.

13. Consistent with the law and the precedents set by this Court, we are inclined to the view that the petitioner is entitled to equal treatment before law and, in view of rule of consistency, entitled to the concession of bail. We, therefore, convert this petition into appeal and by allowing the same, admit the appellant to bail in the sum of Rupees two lacs with two sureties each in the like amount to the satisfaction of the trial Court. Since the trial has been inordinately delayed, we shall direct learned Sessions Judge, Dera Ghazi khan that while entrusting this case to an Additional Sessions Judge he shall ensure that the proceedings of the case are concluded as early as possible and, preferably within four months, under intimation to the Registrar of this Court. N.H.Q/F‑46/S Bail allowed.