P L D 1988 Karachi 78 (PLP)

This application under section 497, Cr.P.C. has been presented on behalf of Wahid Bux Gadani who is facing trial for offence under sections 392, 394 and 397, P.P.C. vide F.I.R. No. 21/81 lodged at the Police Station Kharadar, Karachi, on 1‑2‑1981 by Shaikh Abdul Qadir. Assistant Vice‑President /Manager, Habib Bank Limited.

2. The prosecution case is that at about 10‑00 a.m. on the above‑noted date of incident three unknown persons entered in the Habib Bank Limited, Kochinwala Market Branch, Karachi, duly armed with sophisticated weapons. They caused injuries to the gunman of the bank and snatched .12 bore gun from his possession and looted Rs.11,70,100 from the said branch of the Habib Bank Ltd.

3. The applicant /accused was arrested on 23‑2‑1981. The case against him was challaned before the Military Court. In the year 1984 it was transferred to the Sessions Judge who, in turn, transferred it to 2nd Additional District Judge, Karachi, where it was‑ registered as Case No. 304/84. An application for bail was moved on his behalf which was granted on 31‑3‑1984. However, before he could furnish the surety, the case was again transferred to Special Military Court No. 18, Karachi. The case proceeded there and as per impugned order as well as the statement of the learned counsel for the parties before me the judgment was written" but was not pronounced when the Martial Law was lifted in .198~ and the Military Court stood abolished. The case of the ‑applicant was again sent to the Sessions Court, Karachi, but the file was misplaced in transit from Military Court to Sessions Court. The applicant filed a constitutional petition No. 1082/86 in this Court praying that his case be sent to the Court of competent jurisdiction for trial. It was, however, later on withdrawn and an application on administration side of this Court was presented in December, 1986. Subsequently, the applicant filed an application under section 561‑A, Cr.P.C. in this Court. During the proceedings of the said application the learned Additional Advocate‑General made a statement that the case file of the applicant had been misplaced and that the prosecution would submit a duplicate challan in the Court of Sessions. This undertaking was duly complied with and the case was registered at the old number, namely, Criminal Case No. 304185 in the Court of 2nd Additional District Judge (South) Karachi The applicant then presented an application under section 497, Cr. P. C, before the learned 2nd Additional District Judge. It‑ was contended on his behalf before the learned trial Court that he was arrested on 23‑2‑1981 and since then he is confined in jail. He was thus entitled to the grant of bail under the third proviso to section 497(l), Cr.P.C. The learned trial Court, however, by its order, dated 1‑10‑1987 rejected the said application. The learned trial Court in his impugned order has observed as under:‑ "I have perused the duplicate case papers and find that the present applicant /accused is a member of gang of well‑known offenders namely Karimullah Qureshi, Sharif Gadani (already executed), Wahid Bux (already executed) Gulamo died in encounter so also the remaining accused who are said to be involved in many offences of serious nature, a list of which has been filed by the police. An heinous offence of Harabah took place during the broad daylight, during which sophisticated weapons like staingun, revolver and pistol were used by culprits which resulted in causing the injuries to the gunman and other staff member of the bank. Proviso 3 of section 497, Cr.P.C. has not been added by the legislature for the facilitation of the Harabah offence, because there is every likelihood of misusing of concession of bail. The applicant /accused appears to be a chip of old block on most of family members said to be involved in many heinous as per the Bio‑data furnished by the police. His brother Mohammad Sharif is said to have been executed whereas another brother Sadiq Ali has been shown as absconder.

4. The learned counsel for the applicant vehemently urged that the applicant is entitled to the grant of bail under third proviso of section 497(l), Cr.P.C. for the obvious reason that he is continuously in custody since 23‑2‑1981. The counsel vehemently urged that the observations made by the learned trial Court in his order (reproduced above) are without any justification. He submitted that the applicant is neither a. previous convict nor he has been involved in any other case. This is the only case pending against him. In support of his contention the learned counsel cited the following authorities. (1) Rahim Bux and others v. The State P L D 1986 Kar. 224. ' In this case the accused were challaned under sections 302/395/ 342/332, P.P.C. and 13‑D Arms Ordinance. The bail was sought on the sole ground of the accused having remained in detention as under trial prisoner for over two years. In this case the learned trial Court refused to admit the accused to bail by relying upon the provisions of 4th proviso to subsection (1) of section 497, Cr.P.C. My learned brother Saeeduzzaman, J. relying upon the decision of the Supreme Court in the case of Nazir Hussain v. Ziaul Haq reported in 1983 S C M R 72 held "that the right of accused to be enlarged on bail in accordance with the provisions of third proviso to subsection (1) of section 497, Cr.P.C. is no more a mere discretion of the Court but the accused is now entitled as of right to get bail if the requirements of third proviso to section 497(l), Cr.P.C. are satisfied. I am fortified in my view by the pronouncement of Supreme Court in the case of Nazir Hussain v. Ziaul Haq. After referring to the various dictionary meanings of the word 'criminal' he further held; 'on a careful reading of the fourth proviso in the light of the above dictionary meanings of the expressions, desperate, hardened and dangerous criminal, I am in no doubt that these expressions do not cover a person against whom there is only an accusation itP the shape of a complaint of F.I.R. 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 allegation /accusations in the form of F.I.R. or complaint and on the basis of these allegations proceedings are 'pending again 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'‑ In the case before me none of the accused persons have been convicted so far of any offence. It is also not contended that they have been adjudged to be criminal in any proceedings earlier. In these circumstances, in my view the learned trial Judge was not justified in declining concession of bail to these persons under the third proviso to section 497, Cr.P.C. merely on the basis that the case registered against them disclosed allegations of serious nature or that at the time of commission of alleged offence the applicants had allegedly shown some degree of anxiety or desperation". (2) Sanam Shah and 10 others v. The State 1986 P Cr. L J 2947. In this case also the accused were involved in a case of murder. The case was sent for trial by a Special Military Court where it could not be concluded till 31‑12‑1985, when the Martial Law was lifted. The case was then sent for trial to the Sessions Judge, Khairpur, where an application for bail was moved but without any success. The bail application was then presented to this Court. It was pleaded on behalf of the State that the fourth proviso to section 497(l), Cr.P.C. was attracted in that case for as many as ten persons had died iii the incident in which the applicant was involved. It was also pleaded by the. learned A.A.‑G. that the delay had taken place before the Special Military Court and not before the learned Sessions Judge who had received the case only in February 1986. My another learned brother Nasir Aslam Zahid, J. after referring to the decisions in the case of Rahim Bux v. The State P L D 1986 Kar. 224, and Muhammad Hanif v. The State P L D 1986 Kar. 436, held no doubt the fourth provides to section 497(l), Cr. P.C. proviso that an accused cannot be released on bail even on the expiry of two years of his trial commencing in case the trial is not finalised if he is hardened or desparate criminal but from this it does not follow that law permits that the accused can be kept in custody as an under‑trial prisoner for an indefinite period. The applicants were enlarged on bail on the ground of inordinate delay of nearly five years in the finalisation of their trial. (3) Gul Khan and others v. The State P L D‑1986 Kar.

629. In this case the applicant had filed bail application claiming the concession of bail under third proviso to subsection (1) of section 497, Cr.P.C. The offence with which the applicants were charged are not given. The case was, however, considered in the context of fourth proviso to the said subsection. My learned brother Ahmed Ali U. Qureshi, J. made a ‑ reference to the case of Rahim Bux and others (Supra) but expressed his disagreement' with the view adopted therein. He expressed his opinion as follows:‑ "It will be seen that in the first part of this proviso all the previous convicts have been denied the concession under third proviso. As such there was no necessity for the legislature to have further classified the previous convicts as hardened, desperate and dangerous. As a matter of fact if this interpretation of word criminal is accepted, the latter part of this proviso becomes redundant. It is settled principle of interpretation that redundancy must not be attributed necessarily to the Legislature, Courts must make every effort not to make redundant any part of statute and must, if necessary, stretch the language so as to give it some meaning justified by context and object before Legislature." My learned brother Ahmed Ali U. Qureshi, J. further held:‑. "Keeping this principle of interpretation of statutes in view and considering use of word 'criminal' in the heading of the Act itself and also words used in beginning of subsection (1) of section 497, Cr.P.C. in my opinion the word criminal here means a person who is accused of a crime. Word 'criminal' in the day‑to‑day usage is generally used for a person who is accused of criminal offence or who is known to be or reputed to be committing crimes. Under the circumstances in my opinion the Court dealing with the bail application has to ‑form independent opinion of the person who is accused of the non‑bailable offence as to whether he is or is not hardened, desparate or dangerous criminal. For that it has to see the antecedents of the applicant which are made available before the Court." It was, however, ultimately held that the case fell within the mischief of fourth proviso to subsection (1) of section 497, Cr.P.C. and consequently the bail application was rejected.

5. The learned A.A.‑G., Mr. Abdul Ghafoor Mangi, on the other hand, vehemently opposed the bail application by contending that accused may be held to be a desperate and dangerous criminal in appreciation of the fact that he associates himself with criminals and that he is involved in, several criminal cases. It is not necessary to bring an accused person within the ambit of proviso 4 to section 497(l), Cr.P.C. that he should be a previous convict. In support of his contention the learned A.A. ‑G. on the other hand, placed reliance on a decision in the case of Mohammad Hanif v. The State P L D 1986 Kar.

437. In this case the accused and his wife had allegedly kidnapped three daughters of the complainant, who was sister of accused applicant Mohammad Hanif and out of them two were minors. Eldest daughter who was 17/18 years old and married when recovered, stated in her 161 and 164, Cr.P.C. statements that on numerous occasions she was raped by her maternal‑uncle, accused‑applicant, Mohammad Hanif, who also used her for the purposes of prostitution. The accused was charged, inter alia, with offence under sections 11, 13 and 14 of Zina (Enforcement of Hudood) Ordinance, 1979. In this case my learned brother Sajjad Ali Shah, J. held that 'as a matter of fact opinion can be formed by the Court even then there are no pending cases at all. Such opinion can be formed by the Court on the basis of material in that very case available with prosecution to connect the accused with commission of crime'. It is pertinent to note that the above referred decision reported in P L D 1986 Kar. 224 was cited and considered in this case.

6. I have given my earnest consideration to the facts of the case and submissions made at the bar. I have also very carefully perused the various authorities cited as stated above and what I find is that unfortunately there is a difference of opinion between the learned Judges of this Court on the interpretation of four the proviso to subsection (1) of section 497, Cr.P.C. as is evident from the reproductions made hereinabove from the respective authorities. I feel inclined to agree with the view expressed by my learned brothers Saijad Ali Shah, J. and Ahmed Ali U. Qureshi, J. it is in consonance with the fundamental rule of construction, that a provision of law should be construed in such a way that no other part of it 1st thereby rendered redundant or superfluous, Having specifically excluded. the application of the third proviso to the previously convicted, offender irrespective of the gravity of the offence or otherwise for' which a conviction has been recorded, the legislature has made it further inapplicable to a person who is hardened, desperate or dangerous criminal. Thus, proviso (iii) is concerned with two classes of persons, firstly a previous convict and, secondly, a person in respect of whom the Court forms an opinion that lie is a hardend, desperate or dangerous criminal. It is thus manifestly clear that a previous convict irrespective of the gravity or otherwise of the offence committed by him for which he was convicted, would sot be entitled to claim as of right or be given the benefit or concession made available under third proviso. In the case of a criminal it is, however, to be decided if the criminal is in the opinion, of thus Court, a hardened, desperate or dangerous criminal. In my judgment the word 'criminal' used in fourth proviso to section 497(l), Criminal Procedure' Code is a word of ordinary speech and the Courts have held that if the word is of common speech, and' there is no special definition in the Act, then it must be understood in the way it is understood in, common parlance. It is also held by the Courts in a series decisions that if the word is of common parlance then dictionary is, useless in aid to the construction of such word. When the word 'criminal in relation to a person is, cannot, parlance, it means a person who is habitually addicted to crime or a person who commits criminal on many occasions or is reputed to be frequently indulging in commission of crimes. It is, I think, in this sense that the w rd 'criminal' has been used in fourth proviso to section 497(l), Cr.P.C.1 and it is, what has also been held in the cases of Mohammad Hanifi and Gul Khan (supra). Now, what remains to be considered is whether on the basis of the material available on record, the applicant can be held to be a hardened, desparate or dangerous criminal so as to hold that the benefit available under the third proviso is not extendable to him. The learned trial Court has by his impugned order as already stated, held that the applicant above‑named appears to be a member of gang of well‑known offenders namely Karimullah Qureshi, Sharif Gadani (already executed), Wahid Bux (already executed) Ghulamo (died in an encounter) so also the remaining accused who are said to be involved in many offences of serious nature. The learned Additional Advocate‑ General could not, however, produce the alleged case papers which show that the applicant is member of the above named gang. On the contrary, the learned counsel for the applicant has stated at the bar that it is only case pending against him, and that he is neither a previous convict nor was suspected or tried for any offence in the past. The learned trial Court appears to have allowed himself to be influenced by the fact that the. applicant happens to. be the brother of Mohammad Sharif, who is said To have been executed, and of Sadiq Ali, who has been shown as absconder. I am afraid, it will nut be a safe criterion to prima facie hold a person a dangerous or hardened criminal solely on the ground that he happened to be a near relation of some other person, or persons 'who are desperate and 'dangerous criminals. It is not the case of the prosecution and at least it was not so urged before me that the applicant was apprehended or tried for any offence in the past, It is in the facts of each individual case that the Court has to form an opinion about a person of his being desperate or dangerous criminal. In the instant case the prosecution has failed to satisfy me that there was previous record of applicant of having committed crimes in the past or of having C been suspected as a hardened, desparate or dangerous criminal. In this view of the matter I am of the opinion that the fourth proviso to section 497(l) cannot be pressed into service in this case. I would, therefore, admit the applicant to bail subject to his furnishing two sureties in the sum of Rs.50,000 each, with P.R. Bond in the like amount to the satisfaction of the trial Court. M.B.A./W‑12/K Bail granted.