1992 P Cr (PLP)

(3) Incised wound 2" x 1/3" x bone deep across the medial part of left eyebrow and the forehead. The underlying bone fractured. Brain substance present in the wound. (4) Lacerated wound 1" x 1/4" x skin deep over the left eye‑lid with an abrasion 1‑1/2",just below the eye. (5) Two lacerated wounds, each 1‑1/2" x 1/6" bone deep with abrasion, between the eyebrow, underlying bone fractured. (6) Abrasion 1" x 1/4", over the middle of bridge and both sides of the nose. Nasal bone fractured and depressed. (7) Lacerated wound 2" x 1/2" across the middle of back of skull. (8) Abrasion 1" x 1/2" around,, the outer end of right eye. Eye‑ball damaged and swollen and another abrasion 1" x 1/4" over the right,, upper eyelid. (9) Abrasion 4" x 1/2", on the back of left chest medial part of scapular region. He further submitted that third proviso of section 497(1), Cr.P.C. is controlled by fourth proviso of the said section which prescribed that the provisions of third proviso shall not apply to the previous convict or to a hardened, desperate or dangerous criminal. The petitioner has acted in a desperate manner, therefore, he is not entitled to the concession of third proviso of section 497(1), Cr.P.C.

6. Learned Assistant Advocate‑General reiterated the contentions of the learned counsel for the complainant and submitted that third proviso in view of 1 the conduct of the petitioner is not attracted in the instant case.

7. I have duly considered the submissions of the learned counsel for the parties and have gone through the record of the case.

8. Third proviso to section 497(1), Cr.P.C. is subject to fourth proviso and while considering bail matter under the former proviso, it has to be tested at the touchstone of the later proviso. For convenience sake both the provisos are reproduced hereunder:‑‑ "Section 497(1) ............................................................................................... Provided .......................................................................................................... Provided . :. Provided further that the 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) who, being accused of an offence not punishable with death, has been detained for such offence for a continuous period exceeding one year 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 whose trial for such offence has not concluded: Provided further that the provisions of the 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." The ordinary and the plain interpretation of the, fourth proviso is that the provisions of third proviso shall not be applicable to a previously convicted offender or to a person, who in the opinion of the Court, is a hardened, desperate or dangerous criminal. The plain dictionary meaning of `desperate' is despairingly reckless; furious, `dangerous' means full of danger; arrogant and `criminal' means guilty of crime; violating laws. Since the word `or' has been used in‑between `previously convicted offender' and `to a person who in the opinion of the Court is a hardened, desperate or dangerous criminal', therefore, it follows that a hardened, desperate or dangerous criminal may not be previous convict. The word `criminal' used in the fourth proviso, as stated above, would plainly mean a person who violates the law. Legislature by adding the fourth proviso to section 497(1), Cr.P.C. restricted the powers of the court to allow bail in all the cases where the accused remained under detention for the‑provided statutory period and decided charge mat previous convicts a hardened, desperate or dangerous law‑breaker shall not be entitled to the" benefit of third proviso. Except for the previous convict, it is not required to trace out the history of the offender has acted in a ascertained whether the offender has acted in a hardened, desperate ‑ or dangerous manner. Keeping in view the plain meanings of words even above the Court can form its opinion from the material placed before it whether the violator of law has acted in a reckless, furious and arrogant manner, in so, he can be held to be desperate and dangerous criminal. Testing the conduct and the manner in which the instant crime was committed with the above criteria, it is evident that the accused‑petitioner while committing the offence acted in a desperate manner. Hence he is not entitled to the benefit of third proviso to section 497(1), Cr.P.C.

8. There, is yet another aspect of the case. Challan of the case was put in Court of the Resident Magistrate Detgali on 3‑3‑1991 who transmitted the case file to Additional Sessions Judge‑11, Haripur on 29‑4‑1991. Since 20‑5‑1991 the case was being put off from one date to another for the attendance of the petitioner's co‑accused who are his cousins and serving in Army/Navy. Accused Nasir appeared in. Court on 7‑9‑1991 while accused Sajjad was produced by Pak. Navy Officials on 9‑8‑1992, and supplementary challan was put in on 3‑9‑1992. Hence, the prosecution cannot be blamed for causing delay in conclusion of the trial. The trial is pending since 20‑5‑1991 but it could not proceed due to the absence of Nasir and Sajjad co‑accused of the petitioner. C Hence, on this ground too, the delay cannot be attributed to the prosecution the application deserves dismissal. N.H.Q./1409/P Bail refused.