2004 P Cr (PLP)

SARDAR SAID MUHAMMAD KHAN, 'C.J.

This appeal has been directed against the judgment of the Shariat Court, dated 5-11-1999, whereby accepting the appeal filed by Mumtaz Ahmed, accused-respondent, order of the District Criminal Court was set aside and he was extended the concession of, bail on the ground of completion of statutory period envisage in the proviso to section 497, Criminal Procedure Code.

2. The brief facts of the case are that a written application was filed by the complainant before the Senior Superintendent of Police, Muzaffarabad, alleging that his brother Ishtiaq Akram contested the election to the Legislative Assembly from the Constituency III, Bagh on the ticket of Jammu and Kashmir Peoples Party. On 21-7-1996, Tshtiaq Akram with two other persons, namely, Muhammad Raza Khan and Muhammad Imtiaz Khan, residents of Ravli, left for Muzaffarabad by a Suzuki. Mumtaz Ahmed son of Muhammad Aziz, accused-respondent, also accompanied the aforesaid persons to Muzaffarabad. They .reached Muzaffarabad at about 8-00 p.m. where they took their meals at hotel AI-Abbas. After finishing their business at Muzaffarabad, Ishtiaq Akram alongwith Mumtaz Ahmed, respondent, left for Rawalpindi but they did not reach the destination. On 22-7-1996, the complainant came to know that the vehicle in which his brother was proceeding to Rawalpindi met an accident; on this information he went to tha place of incident where he was told that Mumtaz Ahmed, respondent, who was injured was admitted in C.M.H. Bagh. He went to C.M.H. Bagh and inquired from Mumtaz Ahmed about the incident; he was told by him that he was travelling alongwith Ishtiaq Akram; deceased, to Rawalpindi and during the journey they were fired at. Thus, the deceased could not keep control over the vehicle which fell in the river and thus, he was killed. It is further alleged that subsequently, the respondent gave different versions about the incident. However, when the dead body of his brother was found tied with rope on 2-8-1996 at Dhangali, District Mirpur and the post-mortem was performed, it turned out that the deceased sustained injuries by fire-arms. Consequently, a case ` was registered and on investigations it transpired that the, accused-respondent hired, Zareen Shah and Ejaz Shahid, co-accused, to put the life of Ishtiaq Akram to an end. .30 bore pistol, the weapon of offence was recovered from the respondent while rifle and kalashnikovs were recovered from other accused persons. A briefcase, jacket, driving licence, identity card etc. which belonged to the deceased were also recovered at the instance of Mumtaz ' Ahmed; accused-respondent. Police after the investigation reached the conclusion that the murder of Ishtiaq Akram was committed in pursuance of a conspiracy which was hatched by Mumtaz Ahmed, respondent. The motive for murder is stated to be that during the elections, accused-respondent who was supporter of Ishtiaq Akram, deceased once saw his wife in a compromising position with the deceased near his house; but Ishtiaq Akram, deceased, escaped from there while accused-respondent gave severe beatings to his wife. However, the accused-respondent kept his cordial relations with the deceased as before. Thereafter, he paid substantial amount to the aforesaid co- accused and hatched a conspiracy to kill Ishtiaq Akram. Thus, in pursuance of that conspiracy accused-respondent alongwith aforesaid two persons killed the deceased and thereafter, tied his legs with a rope and threw his dead body into river Jhelum. Just after the incident, the accused-respondent filed a report at Police Chowki Kohala and narrated a fabricated story of attack on them by some unknown persons and falling of the vehicle in the river with the deceased.

3. The accused-respondent sought bail from the trial Court on the basis of completion of two years statutory period envisaged in proviso to section 497, Cr.P.C'. but the same was rejected by the trial Court observing that manner in which the murder was alleged to have been committed, shows that the accused-respondent was a "dangerous criminal" and thus, he could not be released on bail in view of the conditions which have been laid down in the aforesaid proviso. However, on appeal to the Shariat Court, the accused was released on bail observing that in the circumstances of the case the accused respondent was entitled to bail. It is against the aforesaid order of the Shariat Court that the present appeal has been preferred.

4. Kh. Shahad Ahmad, the learned counsel for the appellant, has argued that the Shariat Court has given no reasons for disagreeing with the view taken by the District Criminal Court that the accused respondent was a "dangerous criminal" and thus, could not be released on bail. The learned counsel has contended that the circumstances indicated above show that despite the fact of alleged illicit relations of Ishtiaq Akram, deceased, with the wife of the respondent, he kept friendly relations With the deceased. However, he hatched the conspiracy indicated above and thus, hired the services of the co-accused to put the life of the deceased to an end. He has particularly, stressed that the accused-respondent, after the incidence fabricated a false story and lodged a report at Police Chowki Kohala but his fabrication was exposed when dead body of the deceased was found from Dhangali and the legs of the deceased were found tied up. He has further submitted that recoveries of the belongings of the deceased and his conduct of lodging a concocted report at Police Chowki Kohala, prima facie, implicate the accused respondent with the murder of the deceased. Thus, according to him, it cannot be said that the conclusion arrived at by the District Criminal Court that the accused-respondent was, prima facie a "dangerous criminal" was not justified. The learned counsel has referred to the following authorities in support of his contention:-- In a case reported as Omair Ahmed Siddiqui v. The State 1996 PCr.LJ 22, the words "criminal", "hardened", "desperate" and "dangerous" have been considered in view of their dictionary meanings and it was observed, that even if the accused is found to be of any of the characteristics namely dangerous etc. bail would not be granted to him. It was further observed that whether an accused person suffers from any such disqualifications he should be judged from the material placed on the record. In a case reported as Muhammad Siddique v. Muhammad Behram and another 1998 PCr.LJ 358, it was held that the mere fact that two injuries were given to the deceased with a dagger and the accused person also sustained injuries in the incident would not justify to hold that the accused was a "desperate" or "hardened" criminal and thus, order of the bail allowed by the High Court was upheld. In a case reported as Sheraz Khan and another v. The State 1991 MLD 2262, it has been held that the word "criminal" used in proviso to section 497, Cr.P.C. should be understood in the ordinary sense, meaning a person who is involved in a crime. In a case reported as Muhammad Hafiz v. The State 1992 PCr.LJ 2614, it has been held that if an accused has remained under detention for the statutory period he is entitled to bail provided he is not found to be a "hardened", "desperate" or "dangerous" criminal also- in the circumstances of a case. "

5. Sardar Rafique Mahmood Khan, the learned counsel for respondent No.1, has controverted the arguments advanced on behalf of the appellant. He-has contended that mere levelling the charge of being "dangerous" or "desperate" criminal without any evidence in support of the allegation would not justify the conclusion that an accused person is a "desperate" "hardened" or "dangerous" criminal. The learned counsel has submitted that there is no material on the record to substantiate the arguments advanced on, behalf of the appellant that accused respondent was a "hardened", "desperate" or a "dangerous" criminal. The learned counsel has maintained that a person cannot be regarded to be a `criminal' until and unless it is shown that he was previously convicted. According to the learned counsel until and unless an offence is proved against a person, he cannot be dubbed as a "criminal" of any of the characteristics which have been envisaged in the proviso to section 497, Cr.P.C. He has further argued that according to the prosecution's case Ishtiaq Akram, deceased, has illicit relations with the wife of the accused-respondent; the said fact takes the case of the appellant out of the ambit of the said characteristics. He has cited the following authorities in support of his contention:-- In a case reported as Nazir Hussain v. Ziaul Haq and others 1983 SCMR 72, it has been held that the proviso added to section 497, Cr.P.C. entitles an accused person on bail after the completion of statutory period, as of right if he is not found to be a "hardened" or "desperate" or "dangerous" criminal. In a case reported as Rahim Bux and others v. The State PLD 1986 Kar. 224, it has been held that after addition of proviso 3 to section 497 it is not mere the discretion of the Court to release an accused person on bail after the completion of statutory period, but it is his right, provided he is not found to be a "hardened" "dangerous" or "desperate" criminal. It was further observed that word "criminal" is not interchangeable with word "person" and if a person is not a convict he could not be regarded as a "criminal" within the meaning of the said proviso. In a case reported as Abdul Halim v. The State PLD 1986 Pesh. 92, it has been held that if a person is not proved to have been previously convicted, he could not be regarded to be a "criminal" and would be presumed to be a responsible citizen of a soft character. It was further observed that mere charge against certain person without any evidence would not justify to hold him as a "hardened" criminal.

6. We have given due consideration to the arguments raised at Bar. It may be stated that so far as the argument advanced on behalf of the accused-respondent that the respondent cannot be regarded to be a "criminal" muchless a "dangerous criminal" until and unless guilt is proved against him is concerned is not tenable; because after the decision of the Supreme Court of Pakistan in a case reported as Moundar and others v. The State PLD 1990 SC 934, the matter has been finally resolved in terms that the word "criminal" used in the proviso should be read in ordinary meaning i.e. a person who is involved in a crime; it is not necessary that he should have been proved so on some previous occasion or in the case in which he has been arrested. So far as the contention of the learned counsel for the appellant that the accused respondent has master minded conspiracy to put the life of Ishtiaq Akram, deceased, to an end is concerned, prima facie, the recovery or the pistol, belongings of the deceased from him and his conduct of filing a report at Police Chowki Kohala after the incident clearly shows that if at all he is a "criminal", he is not an' "ordinary criminal" but "dangerous criminal" within the meanings of proviso to section 497, Cr.P.C. According to the prosecution story, despite the alleged illicit relations of the deceased with the wife of the accused-respondent, he kept friendship with the deceased and at the long lost he killed him by hiring the services of the co-accused. When the dead body of the deceased was found from river Jhelum, Dhangali, the legs of the dead body were found tied with a rope and fire-arm injuries were- found on the person of deceased. The alleged recoveries of pistol and the belongings of the deceased from the accused-respondent also, prima facie, connect him with the commission of the offence with which he has been charged. It may also be pointed out that the learned Judge in the Shariat Court did not consider these aspects of the matter and simply mentioned in the impugned judgment that in the circumstances of the case the accused respondent was entitled to bail; the learned Judge in the Shariat Court did not rebut the conclusion arrived at by the trial Court that the accused-appellant was a "dangerous criminal" within the meanings of the relevant proviso. It may be further observed here--that whether the accused person is "hardened", "desperate" or "dangerous" criminal or not, is to be ascertained from the circumstances of a particular case, material placed on the record, manner in which the offence was committed and the motive to commit the offence. A reference may be made to an unreported case titled Muhammad Aziz v. The State (Criminal Appeal No.2 of 1998 decided on 15-5-1998), wherein it was held as under:-- "(5) .... We are of the opinion that the question as to whether an accused is hardened, desperate or dangerous criminal within the meaning of the aforesaid proviso is to be seen in light of the circumstances of each case, i.e. (i) the motive for murder; (ii) the part which each of the accused played in the completion of the offence, (iii) prima facie evidence in support of the incriminating act attributed to the accused persons, and (iv) the effects of the act of the accused on the family of victims and on the society at large." Considering the above mentioned principles, we are of the view that findings of the trial Court that the accused-respondent was, prima facie, a "dangerous criminal" were based on the correct appreciation of law in the circumstances stated above. Thus, we accept the appeal, set aside the judgment of the Shariat Court and order that the accused respondent Mumtaz Ahmed shall be taken into custody anti confined to jail. The bail and personal bonds furnished by him are hereby cancelled. N.H.Q./16/SC(AJ&K) Bail cancelled.