P L D 1988 Lahore 649 (PLP)

Muhammad Sardar, Muhammad lqbal and Zafar alias Jafar petitioners, three real brothers, alongwith three others, namely, Muhammad Aslam alias Achhoo, Rashid and Muhammad Iqbal, are accused of the murder of Muhammad Younas alias Yuna, which took place in the premises of the District Courts, Sheikhupura, at 11.15 a.m. on 29‑3‑1986 and was reported to the police by Sardar Muhammad complainant at 12.15 noon on the same day.

2. The prosecution case is that the complainant party and Muhammad Aslam alias Achhoo accused had cross murder cases with each other; some five or six years before Muhammad Younas alias Yuna deceased and others were challaned for the murder of Ilam Din, father of Muhammad Aslam alias Achhoo accused. They were acquitted. Muhammad Aslam was absconding in a number of cases. On the date of the incident, the complainant party happened to be in the Courts' premises in connection with another murder case. At about 11.15 a.m., Muhammad Younas deceased, Sardar Muhammad complainant alongwith Muhammad Aunir, Auhammad Anwar and Muhammad Haneef, were going from the Sessions Court to the District Courts. The petitioners and their co‑accused came in a car, with M.P.A. plate and fired shots at the deceased killing him there and then. As a result of their shots, Mr. Mushtaq Jamal Pasha, Advocate was also injured.

3. It is stated that the petitioners' co‑accused Muhammad Aslam alias Achhoo, Rasheed and lqbal have since been killed in a police encounter.

4. It is also stated that Muhammad Sardar and Zafar allas Jafar were arrested on 11‑5‑1986, while Muhammad lqbal petitioner was arrested on 23‑7‑1986.

5. Learned counsel for the petitioners maintains that the petitioners had no connection with their co‑accused, Muhammad Aslam alias Achhoo and others, and had no reason to kill the deceased and that the petitioners Muhammad Sardar and Zafar alias Jafar have been in jail for two years since their arrest and the case has not been concluded. In this connection, it is pointed out that the statements of seven P.Ws. have been recorded and now the learned Additional Sessions Judge, who was trying the petitioners has asked for the withdrawal of the case from his Court. Learned counsel also refers to the statement of Mr. Mushtaq Jamal Pasha, Advocate, to point out that, according to him. the petitioners were not among the culprits. The statement has been read over before me; according to it, Mr. Mushtaq Jamal Pasha had not known the culprits and did not know, who had fired the shots. Learned counsel for the petitioners relies upon his admission in cross‑examination that he had learnt in the hospital that two persons had fired shots, but as he had not known the culprits and did not know, who had fired the shots. that admission can hardly afford ground for bail. All the petitioners were named in the F.I.R.; they were according to the prosecution, in the same car from which shots were fired killing Muhammad Younas alias Yuna.

6. Learned counsel then relied upon the third proviso of section 497(l) of the Code of Criminal Procedure, and argued that as the petitioners, Muhammad Sardar and Zafar alias Jafar, have been detained for a continuous period of two years, they are entitled as of right to bail. That proviso enacts that the Court shall direct any person to .be released on bail, who, being accused of any offence not punishable with death, has been detained for such offence for a continuous period of two years and whose trial for such offence has not concluded. The fourth proviso to that subsection however says that the third proviso "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". Learned counsel refers to Rahim Bux and others v. The State PLD 1986 Kar. 224; there it was held that "the word 'criminal' both as defined in the ordinary dictionaries 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 are only allegations/ accusations in the form of F.I.R. or complaint and on the basis of these allegations proceeding are pending against him in a Court of law in which he is yet to be adjudged as guilty or the offence charged ‑with, cannot be treated as a criminal, much less a 'dangerous, desperate or a hardened criminal'. If I may say so with great respect, this view does not take due notice of the fact that the fourth proviso deals with two categories of offenders, namely, the category of previously convicted offenders and the category of persons who in the opinion of the Court are hardened, desperate or dangerous criminals. Thus, the fourth proviso treats hardened, desperate or dangerous criminals as a category apart, distinct from the category of previously convicted offenders and leaves it to the Court to determine if a particular person is or is not a hardened, desperate or dangerous criminal. In my opinion, therefore, to hold that in order to be a hardened. desperate or dangerous criminal a person, must have been convicted 13 or adjudged guilty of an offence is to render the words "previously convicted offender" as also the words "in the opinion of the Court redundant. For if the intention were that only a previously convicted offender is 'a hardened, desperate or dangerous criminal', then, there was no need to mention the category of 'previously convicted offender* as a distinct category, and in any case to use the expression 'in the opinion of the Court' in relation to the category of hardened, desperate or dangerous criminal. The plain meaning of the words of the fourth proviso, in my opinion, is that in the case of a previously convicted offender, the Court has no power to allow bail on the ground mentioned in the third proviso, but the Court has the power on the basis of the material before it, to determine, for the purposes of bail, whether a person, who is not a previous convict, is or is not a hardened, desperate or dangerous criminal.

7. Here the facts are that the petitioners were alleged to have gone to a public place like the District Courts' premises in broad daylight in a car with a fake number plate and killed Muhammad Younas alias Yuna within the view of hundreds of litigants. The petitioners' co‑accused as stated above, were killed in a police encounter. The petitioners and their co‑accused allegedly fired shots indiscriminately and besides killing Muhammad Younas alias Yuna, injured a lawyer, who was present in the Courts' premises in connection with his professional duties and who was a complete stranger to the parties. I do not, therefore, think that interference is called for. Rejected. M.B.A./M‑831/L . Petition dismissed.