2012 PLP 1603 (YLR)

MUHAMMAD YAWAR ALI, J.

Through this petition filed under section 497, Cr.P.C. the petitioner seeks post-arrest bail in case F.I.R. No.412 of 2009 dated 26-9-2009 for offences under sections 302/34, P.P.C. registered at Police Station Makhdoom Rasheed District Multan.

2. According to the F.I.R. on 22-9-2009 the petitioner along with other co-accused stopped the deceased Muhammad Rafique who was travelling on a motorcycle, the petitioner who was armed with a pistol fired at and caused a fatal injury to the deceased. Subsequently the petitioner and other co-accused fled from the scene of occurrence. The occurrence was witnessed by Shahid Khan and Mazhar Abbas.

3. The learned counsel for the petitioner at the very outset has submitted that he is seeking bail on statutory grounds. The petitioner was arrested on 1-10-2009, more than two years have gone by but the trial has not commenced. The petitioner is now entitled to bail on account of the latest amendment incorporated in section 497, Cr.P.C.

4. The learned Deputy Prosecutor-General and the learned counsel for the complainant have vehemently opposed the petition and submitted that the deceased Muhammad Rafique died on account of a firearm injury which was caused by the petitioner. The pistol which was used by the petitioner during the commission of offence has been recovered from him. The petitioner has committed a heinous offence and has been charged with an offence which falls within the prohibitory clause of section 497, Cr.P.C. Since the petitioner fired at the deceased, injured him and ultimately caused his death it can safely be concluded that he is a hardened, desperate and a dangerous criminal not entitled to the concession of bail.

5. I have considered the submissions made by the learned counsel for the parties and have also gone through the record. The petitioner was arrested on 1-10-2009. More than two years have gone by but the trial has not commenced so far. The petitioner has sought bail only on account of an amendment incorporated in section 497, Cr.P.C. which reads as follows:-- Amendment of section 497, Act V of 1898:-- In the said Code, in section 497, in subsection (1),

(i) in the first proviso, after the word "Years" the words "or any woman" shall be inserted; (ii) the second, third and fourth provisos shall be omitted; and (iii) in the fifth proviso, for the full stop at the end a colon shall be substituted and thereafter the following provisos shall be added, namely:- "Provided further that the Court shall, except where it is of the 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) who, being accused of any offence not punishable with death, has been detained for such offence for a continuous period exceeding one year or in case of a woman exceeding six months and whose trial for such offence has not concluded; or (b) who, being accused of an offence punishable with death, has been detained for such offence for a continuous period exceeding two years and in case of a woman exceeding one year and whose trial for such offence has not concluded: Provided further that the provisions of the foregoing proviso shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life,"

6. The clear effect of the newly-added amendment in section 497, Cr.P.C. is that an accused would be entitled to bail if more than two years have gone by and the trial has not concluded unless this court comes to the conclusion that the delay in the conclusion of the trial can be attributed to the accused, the accused is a previously convicted offender for an offence punishable with death or imprisonment for life or is a hardened, desperate or dangerous criminal or is an accused of an act of terrorism punishable with death or imprisonment for life. Although, the petitioner has been attributed a fatal injury to the deceased this court would have no option but to allow bail in case the petitioner is so entitled by virtue of the newly enacted amendment of section 497, Cr.P.C., keeping in view the law laid down by the august Supreme Court of Pakistan in Moundar and others v. The State PLD 1990 Supreme Court 934 and Zahid Hussain Shah v. The State PLD 1995 Supreme Court

49. Admittedly the petitioner is not a previously convicted offender for an offence punishable with death or imprisonment for life nor is he an accused of an act of terrorism punishable with death or imprisonment for life. No record has been provided to this court to demonstrate that the petitioner is a hardened desperate or dangerous criminal or that the conclusion of the trial has been delayed by some act of the petitioner. An argument raised by the learned counsel for the complainant that the petitioner is essentially a hardened, desperate and dangerous criminal as he fired upon and caused the death of the deceased would not hold any water. It would be incumbent on the other side to establish that there are allegations of similar or any other dastardly acts stated to have committed by the accused person. In the absence of material which would establish that the petitioner has previously also been guilty of having committed a heinous offence or having committed a serious offence or any dastardly act out of sheer desperation, it would be wrong to deny bail to the petitioner solely on the ground that in one solitary case he fired at and caused a fatal injury with a pistol. After incorporation of the latest amendment the onus would be on the prosecution as well as the complainant to bring on record some material other than the case in hand to show that the petitioner is a hardened, desperate and a dangerous criminal. The right of the petitioner to get bail on account of the amendment incorporated in section 497, Cr.P.C. is not left to the discretion of the court but is controlled by that provision. In any case law can never be stretched in favour of the prosecution as has been held by the august Supreme Court of Pakistan in Amir v. The State PLD 1972 SC 277.

7. For what has been stated above, this petition is allowed and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.2,00,000 (rupees two lacs) with one surety in the like amount to the satisfaction of the learned trial Court. M.W.A./M-94/L Bail granted.