1987 PLP 1451 (MLD)

The contention of Mr. Ch: Iftikhar Ahmed is that the applicant was arrested on 14-2-1985 and the trial of this case has not yet been concluded. The delay in conclusion of the trial has not been occasioned by any act or omission of the applicant or his counsel. He further contended that the applicant is not a previous convict, nor he was ever challaned in any case. In this connection he has relied upon the report of D.S.P. Crimes, Karachi, dated 7-2-1987, produced as Ex.B-2, and the report of Superintendent Central Prison, Karachi, which has been produced as Ex.B-3. The learned counsel in support of his contentions has relied upon the cases report as 1986 S C M R 1825; P L D 1986 Karachi 224 and 1986 P Cr. L J 2474. Mr.Sarfraz Khan Tanoli, learned counsel for the complainant has contended that this is a case where one person was killed and a number of persons were injured. This Court has to consider the manner in which the incident took place, and merely because the applicant is not a previous convict will not mean that he is entitled to bail under proviso 3 to subsection (1) of Section 497 as a matter of right. He has drawn my attention to a Passage from Judgment of their Lordships of the Supreme Court in Criminal Appeal No.30-K of 1986 which was passed in the same case against the three co-accused. He has further relied upon 1986 P Cr.L J 2184 and P L D 1986 Karachi

437. Mr. Rashid Tariq Khan, learned counsel appearing for the State has opposed the grant of bail to the applicant and has adopted the arguments of Mr.Sarfraz Khan Tanoli. The perusal of the order dated 22-2-1987, passed by the trial Judge will show that the applicant was in no way responsible for the delay which has occurred in disposal of the case. According to learned trial Judge, the delay in decision of the case has occurred for the various peculiar circumstances of the case, and as such the delay was not on the part of the prosecution. He has further observed that in this case that co-accused Altaf remained absconder upto 29-9-1985, and as such the matter was delayed. Accused Sakhi Sultan was granted bail by this Court, and on that strength his learned predecessor granted bail to Aslam and Altaf also. The complainant went for cancellation of bail upto the level of the Supreme Court, and the Hon'ble Supreme Court cancelled the bill of the accused persons vide its Judgment dated 4-2-1987. From the observation of the learned Judge, it is clear, that the present applicant was in no way responsible for the delay in conclusion of the trial. Even the learned counsel appearing for the complainant as well as for the State did not allege that the applicant had obtained any adjournment, or that he was in any way responsible for the delay in disposal of the case. The learned trial Judge did not consider the question of delay caused in conclusion of trial in its proper perspective. In as much as according to him, the prosecution was not responsible for the delay, and, therefore, this fact appears to have weighed with him in deciding the above bail application. Proviso III to subsection (1) of Section 497 read as under:- "Provided further that Court shall, except where it is of opinion that the delay in the trial of the case has been occasioned by an act or omission of the accused or any person acting on his behalf, direct that any person shall be released on bail. (a) ............................ . (b) who, being accused of offence punishable with death, has been detained in such offence for continuous period exceeding two years and whose trial for such offence has not concluded." The fourth proviso on which the learned counsel for the complainant and State have relied upon, read as under:- "Provided further that the provisions of third proviso to this subsection shall not apply to previously convicted offender or to a person who in the opinion of the Court is hardened, desperate or dangerous criminal". The bare reading of the above provisions of law will show that while extending the benefit of proviso III to an accused person, Court was to see as to whether the accused or any other person acting on his behalf were responsible for delay in conclusion of the trial, but the learned Judge instead of considering that aspect has stated that the delay was not on the part of the prosecution. The learned Judge has further observed that 8 persons were injured. That the ferocity of the attack can be assessed from the facts that apart from the abovementioned effective shots the bullets penetrated through the following articles. .. In view of the circumstances in which this incident took place and the law laid down in the latest authority i.e. 1986 P Cr.L J 2184 the present accused came within the ambit of hardened, desperate and dangerous criminal and therefore his application was rejected. In case of Rahim Bux and others v. The State reported in P L D 1986 Karachi 224 and relied upon by the counsel for the applicant, it was held by this Court that "right of accused to be enlarged on bail in accordance with provision of III 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 III proviso under section 497(1) Cr.P.C. are satisfied. In this connection in support of the above view reliance was placed on a Supreme Court decision in the case of Nazir Hussain v. Ziaul Haq; reported in 1983 S C M R

72. It was further observed that the clear effect of the newly-added fourth proviso to section 497(1) Cr.P.C. is to restrict the above right of an accused to get bail under the third proviso to Section 497(1) Cr.P.C. in certain cases. It is clear from the reading of the 4th proviso that it is enacted as proviso/exception to the III proviso, therefore, in order to interpret correctly the IV proviso, the III proviso is to be treated as the main enacting clause. It was further observed that the expressions hardened, desperate and dangerous criminal do not cover a person against whom there is only an accusation in the shape of complaint or F.I.R. The word "Criminal" both as defined in the ordinary dictionary as well as in law dictionary, means "a person who has been convicted or adjudged to be a guilty of offence." It, therefore, necessarily follows that a person against whom there are only allegation or accusation in the form of F.I. R. or complaint, and on the basis of these allegations proceedings are pending against him in Court of law; in which he is yet to be adjudged as guilty of the offence charged cannot be treated as criminal, much less a dangerous, desperate, or hardened criminal." In case of Sanam Shan and 10 others v. The State; reported as 1986 P Cr. L J 2947; (This was a case in which as many as ten persona had died); case of Rahim Bux v. The State; reported as P L D 1986 Karachi 224; and the decision relied upon by the learned a counsel for the complainant as P L D 1986 Karachi 437 were considered, and bail was granted to the accused on the ground of delay. In case of Gul Khan and two others v. The State; reported as 1986 S C M R 1825; (this petition was filed against the decision reported in P L D 1986 Kar. 629; leave was granted by their Lordships of the Supreme Court or, the ground that there is a conflict of opinion in the High Court as to interpretation of IV proviso of Section 497 Cr.P.C. It was stated at Bar by the learned counsel for the applicant that the above appeal has been allowed by the Hon'ble Supreme Court and case reported in 1986 P Cr.L J 93, has been set aside (overruled). In view of the decision of their Lordships of the Supreme Court in the case of Gul Khan and another v. The State the decisions in Muhammad Hanif v. The State; reported in P L D 1986 Karachi 437, and 1986 P Cr.L J 2184 relied upon by the learned counsel for the complainant are- of no help to the prosecution. So far as the observations of their Lordships of the Supreme Court in Cr1.Appeal No.30-K/86 were concerned. the passage which was relied upon by the learned counsel for the complainant, with all my humility and respects, does not put any restrictions on the consideration of fresh bail application on the statutory ground as the above appeal for cancellation of bail was considered on the merits of the case, and the question of grant of bail on statutory ground was not under consideration before their Lordships. In view of the fact that the applicant has remained in jail for more than two years and his trial has not been concluded, and the applicant or his counsel were in no way responsible for delay in conclusion of the trial. The applicant is not previous convict nor he has been challaned in any other case. There being no previous enmity between the applicant and the complainant party; and keeping in view the decision of the Hon'ble Supreme Court in a Gul Khan and others v. The State; I feel that the applicant is entitled to bail on the statutory ground. I, therefore, direct that the applicant be released on bail on furnishing surety in the sum of Rs.50,000 and P.R.bond in the like amount to the satisfaction of the trial Court. M.Y.H./H-23/K Bail allowed.