1996 PCr (PLP)

(a) Zahir Shah v. The State PLD 1995 SC 49 authored by Saiduzzaman Siddiqui, J. for the Supreme Court Bench, other Judge being Mukhtar Ahmed Junejo, J. The case of Nazir Hussain (supra) was relied upon and bail was granted to the accused persons facing trial under section 324/34, P.P.C. on the strength of third proviso to section 497(1), Cr.P.C. This case was not a case of heroin smuggling. (b) Muhammad Jamil v. The State 1994 PCr.LJ 1694 authored by Muhammad Aslam Arain, J. (as he then was). In this case the applicants were arrested for smuggling gold from Dubai to Pakistan on 22-2-1993, and the final challan had not been submitted even after expiry of one year. First application moved on behalf of the applicant was dismissed on 21-10-1993. It was the second bail application which was decided on 16-3-1994, and bail was granted to the accused. (c) Nasrullah v. The State 1992 MLD 1673 authored by Khalil-ur-Rehman Ramday, J. of the Lahore High Court. In this case, the accused was facing trial under section 324, P.P.C. punishable under section 337 F(i) attracting to a maximum imprisonment of five years. Hence this case had nothing to do with the third or the fourth proviso to section 497(1), Cr.P.C. (d) Amir v. The State 1991 PCr.LJ 534 was authored by Qaiser Ahmed Hamidi (as he then was). In this case, the accused has been detained under section 312/504/34/114 and he was granted bail on the strength of third proviso to section 497(1), Cr.P.C. This case was neither under the Customs Act nor there is any similarity of facts between the referred case and the appellant's case. (e) Muhammad Afzal v. The State 1992 PCr.LJ 1492 was authored by Sh. Khizar Hayat, J. of Lahore High Court. In the referred case one alleged abductee contracted marriage with the accused. The Nikahnama had fully-established the marriage. Instead of quashing the proceedings, the Lahore High Court granted bail to the accused under section 497(2), Cr.P.C. on the point that it needed further enquiry whether the abductee was legally wedded wife of the petitioner or not. Reference of this case could not be understood by this Court. Thus, even the microscopic analysis of all the cases referred above leaves no doubt in my mind that none of them was applicable to the case of the present applicant because:-- (i) Most of the referred cases were not under the Customs Act; (ii) One case under the Custom Act was smuggling of gold from Dubai to Karachi which may not be equated with the smuggling of heroin because bring in or taking out the gold is not an international crime while smuggling of heroin has become an international crime in every state. Although one case was related to the smuggling of heroin but there was mere accusations that consignment seized in a foreign country had some connection with the accused/applicant in, Pakistan. (SECOND SET OF JUDGMENTS)

7. Judicial history of the superior Courts in Pakistan reveals that first effort of finding true import of the prohibitions contained in the fourth proviso was made by Saiduzzaman Siddiqui, J. (as he then was of the High Court of Sindh and now the Judge of the Supreme Court) in the case of Rahim Bux v. The State reported in PLD 1986 Kar.

224. After discussing the meaning of word `criminal' from different dictionaries, the Honourable Judge observed 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 proceedings are pending against him in a Court of law in which he is yet to be adjudged as guilty of the offence charged with, cannot be treated as a criminal much-less a `dangerous, desperate or a hardened criminal'." (Underlining is my own) It is thus evident that the Honourable Judge limited his view to the word "criminal" by observing that criminal means "a person who has been convicted or adjudged to be guilty of an offence. This judgment, therefore, does not cover the interpretation of the adjectives used in the fourth proviso. I would like to add only few lines to elaborate the above opinion. Grammatically the word "criminal", in the English language, is used as an adjective as well as noun. According to Webster's New Universal Unabridged Dictionary, meanings carried by the word "criminal" in both forms are as under:-- (1) guilty of a crime. (2) having the nature of crime that violates a law of morality or well being; as, theft is a criminal act. (Ornaments only indications of vice, not criminal in themselves ... Addison.) (3) Involving or relating to crime; as a Criminal Code, Criminal Law, Criminal conversation; In its "Noun Form" Criminal means: (1) One who has committed a crime. (2) One who has been legally convicted of crimes. (Underlining is my own). From the above it is evident that the Honourable Judge, in the case of Rahim Bux (supra) had discovered only one meaning of the word criminal from different dictionaries i.e., criminal means convicted person. But acceptance of such limited meaning creates two hurdles: (1) Firstly It is clear from the fourth proviso that the legislature has mentioned two categories of accused persons in the proviso i.e. (a) previously convicted offenders, (b) persons who, in opinion of the Court, are hardened, desperate or dangerous criminals. Therefore, acceptance of the opinion expressed in Rahim Bux (supra) case means to nullify one of the two abovementioned categories by treating the same to be redundant. But it is settled principle of interpretation that redundancy must not be attributed necessarily to the legislature and the Courts are required to make every effort not to make redundant any part of statute and must, if necessary, stretch the language so as to give it same meaning justified by context and object before Legislature. Support regarding this principle can be sought from a case reported as Asif Ali Zardari v. The State 1992 PCr.LJ 171 also authored by Saiduzzaman Siddiqui, J. (as Chief Justice of Sindh High Court, as he then was) for a D.B. other Judge being my learned brother Salahuddin Mirza, J. Incidentally I was, at that time, one of the Advocates in that case and the main point raised before the learned D.B. was that definition of 1Iaraabah under section 15 Offences Against Property (Enforcement of Hudood) Ordinance, 1979 was equally applicable to an offence under section 17(3) of the same Ordinance and an offence under section 365-A, P.P.C. Therefore, if evidence of an approver under section 16 of the Qanun-e-Shahadat Order is not admissible in the cases of Hudood as in the cases under section 17(3) of the Ordinance then the same could not be admissible too in the cases under section 365-A, P.P.C. The Honourable Division Bench mentioned this point in the judgment asunder:-- "Mr. Shafi Muhammadi contended that in order to determine the admissibility of the evidence of Atif Manzoor in the case the Court should first address itself to the nature of the offence alleged against the accused Persons/petitioners as the admissibility or otherwise of the evidence of Atif Manzoor will rest upon such determination only. It is contended by the learned counsel that if upon ultimate analysis the Court reaches the conclusion that the offence alleged against the petitioners is liable to punishment of `Hadd' or `Qisas' then the evidence of Atif Manzoor who is an accomplice will be rendered inadmissible in view of the law laid down in the case of Federation of Pakistan v. Gul Hassan Khan and Haider Hussain v. Government of Pakistan. The contention of Mr. Shafi Muhammadi appears to be correct." (underlining is my own) However, the contention which was appearing to be correct to the Honourable Division Bench was repelled in another para. which runs as under:-- "It may be mentioned here that offence against Property (Enforcement of Hudood) Ordinance, 1979, was promulgated on 9-2-1979 and came into effect on 10-2-1979. Section 365-A was added by the Legislature in the Code of Criminal Procedure on 3rd September, 1989, by Ordinance IX of 1989. The Legislature was fully aware of the definition of `Haraabah' as given in section 15 and the punishment of `Haraabah' as prescribed in section 17 of Ordinance VI of 1979, but in spite of that they introduced section 365-A in the Code of Criminal Procedure to prescribe a different punishment for the offence of kidnapping or abduction for extorting property, valuable security, etc. No redundancy can be attributed to the Legislature. (Underlining is my own) It is thus evident that view expressed by the Honourable Judge in the case of Rahim Bux (supra) can be rocked by the views expressed by him in Asif Ali Zardari's case (supra). The Honourable Judge also placed reliance on the case of Nazir Hussain (supra) in the case of Rahim Bux (supra). Note: Inadvertently it was written by the Division Bench that section 365-A was added or introduced in Cr.P.C. but addition or introduction of section 365-A" by the Legislature was not done in the Code of Criminal Procedure as stated twice in different sentences in the above quoted para. It was in P.P.C. (ii) Second hurdle for accepting the said opinion is the same as discussed In Para. 5(2) above with reference to the case of Nazir Hussain (supra) decided on 4-7-1982 while fourth proviso came into being on 26-12-1983.

8. Second effort was made by Justice Sajjad Ali Shah (the present Chief Justice of Pakistan) who (in capacity of a Judge of the High Court of Sindh, as he then was) observed in the case of Muhammad Hanif v. The State PLD 1986 Kar 437 that:-- "In support of this proposition reliance has been placed by the learned counsel on the order passed by my learned brother Saiduzzaman Siddiqui, J. in Criminal Bail Application entitled Rahim Bux and others v. State. I have very carefully gone through this order and with utmost deference to my learned brother I say that I have not been able to persuade myself to subscribe to the view expressed therein relating to interpretation of fourth proviso to section 497(1), Cr.P.C. In the reported case under reference reliance is placed on the case of Nazir Hussain v. Ziaul Haq and others in which Supreme Court has re- emphasized mandatory nature of third proviso to section 497(1), Cr.P.C. in respect of grant of bail on the ground of statutory delay as contemplated therein. Now firstly there is absolutely no cavil or confusion about the legal position laid down by the Supreme Court regarding grant of bail on the ground of statutory delay. Secondly Supreme Court announced this decision on 4th July, 1982, when fourth proviso to section 497(1), Cr.P.C. was not in existence at all and was added on 26-12-1983 by Code of Criminal Procedure (Second Amendment) Ordinance (XXXII of 1983)." This para. also clearly establishes that if any opinion is expressed by any Judge of High Court, then it is not necessary that other Judges of the High Court should also be persuaded by the same in each and every case. In another para. it was further held that:-- "To put any other special meaning on the word `criminal' in that proviso to mean a person who is previously convicted of the crime would tantamount to rendering second half of the proviso as completely redundant and meaningless particularly when previously convicted offenders are specifically covered in the first part of the proviso." Similar views were expressed in the cases of Wahid Bux Gandani v. The State PLD 1988 Kar. 78 and Gul Khan and others v. The State PLD 1986 Kar. 629 authored by Mazhar Ali, J. and Ahmed Ali U. Qureshi, J. (as they then were) respectively.

9. Perusal of all these judgments radiates that majority of the Judges of the Superior Courts were not persuaded to subscribe to the views expressed in Rahim Bux case (supra). But, similarity of views expressed by Judges of different S.Bs. on any point of law cannot be authoritative for any other Judge of any High Court and if any Judge is not persuaded by that view, he (now she also) can express his/her own contrary view. On account of these reasons the conflicting views about interpretation of the fourth proviso expressed in different cases ruled the field till they were taken into consideration by a Bench of the Supreme Court of Pakistan in the case of Moundar and others v. The State PLD 1990 SC 934 authored by Zafar Hussain Mirza, J. (as he then was) for a Bench, comprising of five Judges, other Judges being Muhammad Haleem, CJ. Shafi-ur-Rahman, Saad Jan and Ali Hussain Qizilbash, JJ. The Honourable Supreme Court, after taking into consideration, particularly the two cases initially decided on this point i.e. cases of Rahim Bux (supra) and Muhammad Hanif (supra) as well as the case reported as Abdul Haleem v. The State PLD 1986 Pesh. 92 observed that:-- "The view taken by Sajjad Ali Shah, J. appears to be correct and the construction placed by him is in consonance with the intention of the legislature underlying the provision in question in the context of the whole section."

10. Out of the cases referred by Syed Sami Ahmed, the learned counsel for the applicant, the case reported as Zulfiqar Ali and others v. The State 1990 PCr.LJ 822 seems to possess some relevancy. I have used the word "some" and not "total" because the accused in that case was facing trial under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and not under section 156(1)(8) of the Customs Act under the. charges of smuggling heroin. So far as the point of similarity is concerned, both offences i.e., under section 17(3) as quoted above and offence of smuggling heroin affect the society at large. In the referred case two accused persons were arrested on 22-9-1986 and 23-11-1986, respectively but the trial Court rejected their bail application on 11-12-1988 i.e., even after the expiry of two years. All those cases, which have been referred in the foregoing paragraphs were taken into consideration by the learned Judge (Qaiser Ahmed Hamidi, J.), and it was held that:-- "A person of desperate and dangerous character means a person, who has a reckless disregard of the safety and property of others. The characteristic of being a desperate and dangerous is a personal attribute and, therefore, the manner in which an accused person had conducted himself at the time of commission of offence is also an important consideration in arriving to a finding of this nature. The opinion of the Court to this effect which is always tentative in nature can be formed on the basis of: (i) nature of accusation and conduct of accused at the time of alleged incident, (ii) previous record of the accused which may include his earlier prosecution, and (iii) material placed before the trial Court like reports of concerned police and jail authorities. It is the cumulative effect of all the three aspects that may finally determine a tentative opinion in this behalf." On the basis of this judgment, it was explained by the learned counsel that in the cases of rape if one accused was charged for raping a woman and another accused was charged that he raped a child, killed the child after raping her and threw her dead body in a deserted area, the first accused may be called a criminal but the second accused would certainly be called a "dangerous criminal". The learned counsel also contended that there was a thin line of demarcation between desperate and dangerous.

11. With all my praises for such averments I, in spite of my best efforts, could not persuade myself to agree with this contention because the word "or" used in the fourth proviso radiates that the three adjectives used in it are to be read disjunctively. Therefore, they have their own scope and meanings in the context of facts embodied in any case. Intention of the legislature by using the word "or" in the fourth proviso clearly reflects that not only the adjectives hardened, desperate or dangerous used with the word "criminal" be construed independently but the accused be also denied bail if he/she falls within the clutches of one or more than one C adjectives. It is commonly known to all that whenever any provision of law is introduced in any statute by the legislature, then several terms used in it are usually defined in the Statute if the legislature wants to give them specific meanings. In case these terms/expression/words are not defined then intention of the legislature would be searched out from the meanings commonly known or used by common people at that specific time. No doubt, the dictionary meanings of words have their own importance but intention of the legislature cannot be made the slave of those meanings. Moreover,' according to my point of view, dictionary meaning be given preference only when there is any ambiguity in understanding the intention of legislature with reference to the prevailing circumstances at the time such provision of law was introduced. It is, therefore, necessary for the Superior Courts not to imprison themselves within the walls of old dictionaries at the time of construing any provision of law even if the same has not been specifically defined in the Statute. As the concept of every commonly used word goes on expanding with the fast running time, therefore, Courts are not supposed to adhere only with the past to construe any provision of law on the basis of out-dated concepts by ignoring the requirements of the existing/running era. This reality should also be not ignored that tremendous scientific progress in the field of communication have brought the States of the world much more closer than before. Therefore, certain crimes have taken the shape of "International Crimes" even if they are/were committed in any specific State. Hence any expression relating to such crimes requires to be construed in such manners which should be universally acceptable. These propositions led me to approach a wider concept of three adjectives i.e., hardened, desperate and dangerous used in the fourth proviso. With reference to the crime of smuggling heroin it can be said with certainty that this crime was not known to be so dangerous to the people of Pakistan prior to the Zia's Martial Law Regime. Its roots were deepened in this Islamic Country when the self-styled Islamic Champions of the Regime were fully drunk with the usurped power at the strength of guns. The culture of drug mafia and arms-mafia flourished freely with power-mafia of Martial Law side by side. In the present age mafiosi of one mafia are interlinked with the other and heads of these cartels are undoubtedly International criminals notwithstanding to -this fact that they have citizenship of different States. Therefore, at the time of construing any expression the superior Courts are supposed not to ignore this important reality that construction of any expression with reference to any local crime and its effects upon specific or individual families may not cover the intention of legislature for introducing these terms in respect of such crimes which affect the society at large or/and have adopted the shape of international crimes.

12. On the basis of this proposition the expressions/terms hardened, desperate, dangerous and criminals used in the fourth proviso must be construed with their wider concepts particularly in respect of those crimes which are squeezing the beauty of humanity in every corner of the world. This reality may not be denied by anyone that Karachi, the biggest city of Pakistan was once known (in Sindhi and Saraiki language) as Laj Pal city means nourisher to all creatures besides being a city of lights and He but the curse of arms running, drug trafficking and other vices has sieged it and converted it into a city of SOBS (means city of sectistis, obscurants, barbarians and slaughterers of innocents). I am, therefore, of the view that the terms criminal, hardened, desperate or dangerous be construed in the context of V nature of every crime with reference to its effects on the individuals or on the society at large in accordance to the prevailing circumstances: On the basis of this testing formula it can be seen that the word hardened has been derived from the word "hard" which is most commonly used in our daily life such as "hard life, hard knot, hard words, hard heart etc. In the light of this sense "hardened person" would mean any human being who has become hard in his nature and does have no- feelings of any kind. Thus, it imports the concept of being undurate, inflexible, rigid, incapable of feeling or sensation etc. In the field of criminology, therefore, a hardened criminal, in its commonly known usage would mean a person who is accused of or reputed as pitiless or possesses the nature of unmercifulness or insensibility to the distresses of others. Most of the hired criminals can be included in this category. The word "desperate" is not only used as an adjective but also as a noun. A desperate person may not be hardened person. This aspect can be explained with an example. During the pendency of Zia's Martial Law Regime, the concerned authorities after realising that usurped power-was slipping from their hands, took desperate measures by introducing black laws to arrest advocates, politicians and all other such persons on account of their innocent crimes of working against barbarism of Martial Law. All such usurpees and their disciples belonging to the Martial Law were not falling within the clutches of expression hardened but they were desperate who wanted to keep themselves safe with the usurped power and for that purpose, they never hesitated to assassinate anyone or get the politicians killed. But, as a result of their desperate acts, martyrs became legends. In the light of this example, a desperate, inter alia, means despairing, having no sense to danger, safety or consequences. In criminology if any criminal possesses such qualities, then he should be treated as desperate criminal. If the examples of rape cases, as explained by the learned counsel are tested on these propositions as well as in the light of dictum laid down in the cases of Zulfiqar All, (supra 1990 PCr.LJ 822) referred by the learned counsel, then conduct of offenders in the rape cases can attract the expressions "hardened" or "desperate" due to the factors of barbarity or savagery or, wilderness (but wilderness not in its poetic sense such as: A Jug of wine, a loaf of bread and thou -Beside me signing in the wilderness; (Omar Khayyam).

13. The learned counsel also stressed that there was a thin line of demarcation between the three adjectives but I am not convinced by this submission. I am of the view that the words "hardened" and "desperate" reflect the conduct of accused person but the word "dangerous" would attract the horrible H effects of an offence against the society at large. In the present age the words criminal and dangerous are so commonly used, abused and misused in every field of our daily life that no one can construct any bund to stop its continuous expanding trend regarding its meanings. For example if any politicians of any democratic country, being lusty of power, becomes the head of any State through back door by rigging of elections, manipulation with certain powerlusty generals or by adoring before the power corners then such person can be called a political criminal. The use of words "dangerous weapons, dangerous zones or dangerous drugs are the common terms used in our daily life. A common pistol may not be treated a dangerous weapon but a Klashnikov (kk) is considered to be a dangerous weapon by common people because the affects of firing from a pistol are not generally so horrible as compared to the effects of firing by Klashnikov (kk). Similarly no zone by itself is dangerous or peaceful but the effects of horrible incidents turn it into a dangerous zone. Same is the position of drugs. Large number of drugs are used as medicines. They may be dangerous if they are used carelessly but no one calls them dangerous. But, heroin is a drug which is considered dangerous on account of its dangerous effects on the society. I think that real concept of dangerous can also be understood by taking into consideration its antonym or synonym. In this connection Corpus Juris Secundum guides us properly by defining the term dangerous as under:-- "Dangerous.

Said to be a relative term expressive of thought that something is unsafe, and defined as meaning attended or beset with dangers, full of risk hazardous, perilous, or unsafe, deadly; involving or exposing to danger, liable to inflict injury for harm, or likely to harm. Used specifically with reference to appliances and instrumentalities furnished to employees, `dangerous' has been held synonymous with 'not reasonably safe'; and generally it is the opposite of, and contra-distinguished from, `safe'." Same meanings appear in Ballentine's Law Dictionary as well as other dictionaries. Thus, in its wider sense and with reference to the meanings as mentioned in Corpus Juris Secundum or in other dictionaries, I am of the view that words "dangerous criminals" cannot be limited to express the conduct of an accused at the time of incident. As the words "dangerous" is a relative term, therefore, it has much wider scope than presumed by the learned Advocate. Its meanings can be ascertained with reference to the conduct of the accused at the time he was arrested; his previous conduct with reference to his past; nature of offence with reference to its effect on society or undivided; his faithfulness or betrayal with reference to moral or official duties etc. etc. Thus, this expression is extendible to large extent but at least it can be extended to a person from whom the society-at-large or the humanity in general is unsafe. The real concept of dangerous, can also be derived from the examples of different types of murders. A murder attracted by section 302 Qisas and Diyat Ordinance is compoundable while a murder under section 17(4) Offences Against Property (Enforcement of Hudood) Ordinance, 1979 is not compoundable although the fact of killing and punishment of death are common in both the offences. The reason is obvious. A person facing trial in any compoundable murder is a criminal but his crime is considered to be an offence against an individual family, therefore, the same' can be compounded with the aggrieved family. But a person facing trial in non-compoundable murder commits a crime which is treated to be against the society-at-large, therefore, the same cannot be compounded even if the aggrieved families show their willingness to compound the matter. Murderers in such cases may or may not be hardened and desperate criminals if judged in the light of facts of those cases or with reference to the previous record of accused persons but undoubtedly such persons are dangerous criminals if considered in the light of difference between the two types of murders regarding their effects on individual families and against society-at-large. The actual concept of word dangerous can also be gathered from Schedule II of the Code of Criminal Procedure with reference to punishments.

14. The microscopic study of "punishment for different offences' radiates that prior to 1979, death sentence was applicable only in those cases where death of a person/persons took place. In all other cases punishment of death was only limited to the offences punishable under section 132, P.P.C. (mutiny, if committed) and under section 121, P.P.C. (waging war against Pakistan). After 1979, death sentence was also introduced in the cases attracted by sections 354-A, P.P.C., 365-A, P.P.C. and adultery even if no murder takes place. There can be no other reason for imposing death sentence in those cases except that these offences, undoubtedly affect the society very badly. On the same proposition if the offence of smuggling heroin is taken into consideration with reference to its punishment in different States, then there remains no doubt that harsher punishment for this crime was introduced in several States on account of its horrible affects through out the world. I would have discussed the concept of "dangerous criminal' with reference to offence under section 123-B, P.P.C. regarding its effects on the whole nation and in the world by taking into consideration the concept of its being "prohibitory or not prohibitory" if the Honourable Bench of the Supreme Court comprising of Saiduzzaman Siddiqui and Mukhtar Ahmed Junejo, JJ had not observed that:-- "The offence under section 123-B, P.P.C. is described in Schedule II of the Cede of Criminal Procedure as non-bailable and non compoundable offence although the punishment prescribed is only 3 years of either description or fine or both. Similarly, the punishment prescribed for carrying and transportation of heroin is life imprisonment. Therefore, both these offences fall within `Prohibitory clause of section 497, Cr.P.C. (Sikandar A. Karim v. The State reported m 1995 SCMR 387 Rel. page 399). The above observations were made in respect of the views expressed y this Bench in para. 15 on page 96 in the case of Sikandar A. Karim v. The State reported in PLD 1995 Kar. 73 where I had discussed the offence under section 123-B punishable only for three years by putting the same in "non prohibitory clause". However, the Judges of every High Court are Constitutionally bound to follow the views, of the Supreme Court by observing that:-- "Article 189 of the Constitution envisages in unequivocal terms that decision of the Supreme Court deciding a question of law is binding upon all other Courts in Pakistan." (1995 SCMR 429). On account of the binding force of Article 189 of the Constitution, I have to treat section 123-13, P.P.C., with reference to its being. "prohibitory or non -prohibitory" as it has been held in the above quoted paras of the Supreme Court in Sikandar A. Karim's case (supra). On account of this reason I have avoided to discuss the concept of dangerous with reference to section 123-B, P.P.C.

15. In the present age every civilized country has treated the transportation or trafficking of drugs (heroin, Charas etc.), as the worst crime on account of its deadly effect and due to the reason that it has become a universal problem. Therefore, every State is trying its best to control this crime with all possible means because, now it is not a secret that drug user's life in every country has become a matter of shame and misfortune for millions of families and the addicts do not hesitate to commit several other crimes such as theft and prostitution which is increasing especially among women with increase of dangerous disease "AIDS". To sensitize the world community about the eroded lives of millions of human beings due to drug trafficking International Day against Drug Abuse and Illicit Trafficking is observed on 26th June and this year a seminar organized on that day in Pakistan by the Narcotics Control Division in Collaboration with the United Nations Drug Control Programme (UNDCP) and Narcotics Affairs Section of the U.S. Embassy was also addressed by the President of Pakistan Mr. Farooq Ahmed Khan Leghari who disclosed that there were 1.5 million addicts of heroin in Pakistan. This disclosure shows the most alarming affects of heroin in this Islamic country. The survey of 1993 on drug abuse in Pakistan shows the rise of 6.8% addicts every year which is the most frightening figure. In the light of these horrible realities persons alleged to be involved in crimes of drug trafficking in Pakistan or smuggling the same in collusion with foreigners cannot fall out of the ambit of expression "dangerous criminal" and, therefore, they cannot get any benefit out of the third proviso to section 497, Cr.P.C.

16. In the last, but not the least, I would like to deal with the case of present applicant from another angle too. It is my considered opinion, perhaps on account of my being a lover of political science, that integrity of States depends upon the integrity of its institutions. For example, responsibility of maintaining law and order is upon the shoulders of law enforcing agencies. If any member of such agencies passes on informations to terrorists of the country then maintaining law and order would become impossible. Similarly, if any member of the defence forces starts spying for the enemies, then safety of the country would face the greatest danger. Same is the position of politicians. If they start working as agents for the enemies, then it would not only endanger the sovereignty and stability of the State but the Government might also not be able to work for the welfare of the poor citizens due to absence of political stability in the country. All such persons, according to my point of view, are much more dangerous criminals than only "dangerous criminal" although none of them may be involved in any killing directly or indirectly, for the purpose of treating them as hardened or desperate. On the basis of this proposition too, the present applicant cannot be excluded from the expression "dangerous criminal" provided the charges are proved against him.. Admittedly, he was working as "Deputy Superintendent (Vigilance) Civil Aviation Authority, Karachi when he was allegedly caught red-handed. The Civil Aviation Authority is entrusted with very sensitive nature of work and the applicant, being member of the said Authority was morally duty bound to establish the confidence of that institution. In case the charges are established against him, then the applicant has shattered the confidence of this sensitive institution in the eyes of public. Therefore, I do not consider the applicant to be out of the clutches of term "dangerous criminal" with reference to his designation especially in the light that the term "dangerous" is a relative term.

17. The learned counsel for the applicant had greatly stressed upon the case of Zulfiqar Ali v. The State 1990 PCr.LJ 822 for the release of present applicant on bail. A bare reading of that judgment shows that bail was granted to the accused in that case, after taking into consideration that all the P.Ws. including complainant had sworn in their affidavits exonerating the applicants from the charge. Reliance was, placed on the cases reported in 1979 PCr.LJ 174, 1979 SCMR 30, 1984 PCr.1J 3222 and 1984 PCr.LJ 3229 for granting bail to the applicants. Admittedly, in the case of the present applicant no such affidavits were sworn in by the witnesses. Hence I am unable to agree with the contention of the learned Advocate to rely upon the case of Zulfiqar Ali (supra) to grant bail to the present applicant.

18. It is important to point out that main cases on the point of third and fourth provisos to section 497(1), Cr.P.C. as referred and discussed above, are not related to the offence of smuggling heroin. Cases reported as Rahim Bux PLD 1986 Kar. 224, Gul Khan PLD 1986 Kar. 629, Abdul Halim PLD 1986 Pesh. 92 and of Moundar PLD 190 SC 934 relate to murders while the case of Muhammad Hanif PLD 1986 Kar. 437 relates to offence of Zina (adultery). I have already expressed my view that cases of murder (or body injury) attract the Qisas Laws which affects individuals and, therefore, they have been made compoundable. As the offence of smuggling heroin affects the society as a whole and its consequences are most horrible for the innocent humanity, therefore, none of those cases with reference to the interpretation of the three adjectives used in the 4th proviso would be applicable to the case of present applicant. On account of the difference between the nature of offences and their effects, it is necessary that construction of the three adjectives used in the fourth proviso be done by keeping in view the said difference from case to case because import and constructions of the three adjectives in issue in murder cases cannot be made applicable in the cases of smuggling heroin. Conclusion In the light of reasons as listed above I am of the view that accused/applicant alleged to be involved in offences of gun-running, drugs smuggling/trafficking, sniping, child lifting, running Kharkar Camps, kidnapping for ransom or for any other illegal purpose (even of any Ms Alice by any Ajab Khan Afridi of the present age or kidnapping innocent foreign- tourists or employees under the garb of any pretext) and all such other or similar vices, may be released on bail on any ground available to them under section 497, Cr.P.C. except under the third proviso to section 497(1), Cr.P.C. Resultantly the bail is refused to the applicant and the application is dismissed. However, the applicant can move fresh bail application on Any other available ground. N.H.Q./J-29/K Bail refused.