P L D 1986 Karachi 629 (PLP)

In this case the bail is sought on behalf of the applicants only on the ground that the applicants have remained in jail as under‑trial prisoners, for more than two years and the case is not concluded. Admittedly the applicants are entitled to the concession of bail under third proviso to subsection (I) of section 497, Cr. P. C. unless the case of the applicants is kit by fourth proviso to the said subsection. To appreciate the questions involved, It will be helpful to reproduce the third and fourth proviso to subsection (1) of section 497, Cr. P. C. which read as follows :‑ "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 otter 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 Sub section 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." It is an admitted fact that the applicants are not previous convicts. The only question to he considered is whether they can be considered as desperate, dangerous and hardened criminals so as to be deprived of the concession of bail under third proviso of the said subsection. Word 'criminal' has not been defined in the Criminal Procedure Code or in any other law. This question came for consideration before a learned Single Judge of this Court in the case of Rahim Bux and others v. The State (P L D 1986 Kar. 224). The learned Single Judge held that the word criminal' is not defined in the Criminal Procedure Code and that it was not contended before him that it was used in any peculiar or particular sense. He, therefore, referred to various dictionary meanings of the word 'criminal' and came to the conclusion "that word 'criminal' means a person, who has been convicted or is adjudged to be guilty of 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 offence charged with, can, not be treated as criminal muchless a dangerous desperate or hardened criminal." With due respect to the opinion of learned Single Judge I respectfully disagree with the opinion. If word criminal ‑means previous convict then fourth proviso would in fact read as under: "Provided further that the provisions of third proviso to subsection (1) shall not apply to a previously convicted offender or to a person who in the opinion of the Court is hardened, desperate or dangerous previous convict." 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. It was also argued from the bar that under section 110, Cr. P. C. as well as under certain other security/preventive laws, persons who are considered as desperate, dangerous and hardened offenders are proceeded against and either surety for good behaviour is taken from them or they are put under preventive detention. Such an order is not considered as a previous conviction for the purpose of enhancement of sentence under section 75, Cr. P. C. It was argued that this part of the proviso refers to such persons who are adjudged by competent Court in such proceedings to be hardened, desperate or dangerous offenders. I was in the first instance inclined to agree with this interpretation but on the re‑examina tion of wording of this part of the proviso,. I am afraid, I cannot agree with this interpretation. As the words of this proviso stand, it is for the Court dealing with the bail application to form an opinion as to whether the person is hardened, dangerous or desperate criminal. If there was already such adjudication by the competent Court then, as in the case of previous convicts, the words "in the opinion of the Court", would not have been used. The learned counsel argued that previous convictions or adjudication by competent Court could be one of the factors and if the previous conviction or security order is sufficiently old, the Court may or may not consider it sufficient for application of provisions of fourth proviso. Again I am unable to agree with this argument. Same argument can be forwarded for the persons who have been convicted by a Court of law previously. It will be seen from the language of fourth proviso, that in case of persons, who are previously convicted, howsoever, old that conviction may be, no option is left to the Court to decide as to whether he is or not a previous convict for the purpose of application of fourth proviso. Therefore, it cannot be accepted that only in cases of orders of detention or security this latitude has been given to the Court by putting words "in the opinion of the Court". It may be noted that section 497 is found in the Act which is called Code of Criminal Procedure. It will be seen the word "criminal" is used in the title of Act itself. The Code of Criminal Procedure is a Code which prescribes and provides for the procedure to be adopted for the trial of persons accused of criminal offences in the Courts. It may also be helpful lo note that subsection (1) of section 497 starts with the words: "When any person accused of non‑bailable offence . . . . . The true meaning of any passage is to be found not merely in the words of the passage out comparing it with other parts of law to ascertain also what were the circumstances with reference to which the words were used and what was object appearing' from those words which the Legislature had in view. 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 B or reputed to be committing crimes. Under the circumstances in my opinion the Court dealing with the ball application has to form indepen dent opinion of the person who is accused of the non‑bailable offence as to whether he is or is not hardened, desperate or dangerous criminal. For that it has to see the antecedents of the applicant which are made available before the Court. Now I proceed to discuss the merits of case of each applicant to find out if he can be considered as a desperate, dangerous and hardened criminal to be deprived of the concession extended to him under the third proviso to subsection (1) of section 497, Cr. P. C. Learned A. A.‑G. states that applicants Gul Rhan and Kamil were each challaned in four cases and applicant Dadali was challaned in three cases. All these cases pertain to the offences of causing injuries, of attempting to' commit murder and also of possession and use of unlicensed arms. It is further stated by learned A. A.‑G. that these applicants, who were initially detained in judicial lock‑up Kandhkot, were transferred to Central Jail Sukkur under orders of I.‑G., Prisons on the report of Superintendent, Jail Kandhkot, that the said applicants were dangerous and desperate criminals. It is contended by the learned counsel of the applicants that all these cases were registered by the complainant party viz. Suhindras with whom the accused party have dispute over piece of land. It. is further stated that accused party have also registered cases against the complainant party vie. Suhindras which have also ended in acquittal. It is further argued by learned counsel that a person who has been acquitted by the Court of law whether on benefit of doubt or otherwise, cannot be considered as criminal after such decision of the Court. It is further argued that the Court has to form its own opinion and should not depend only on the word of Jail Superintendent with regard to the fact whether applicants are desperate and dangerous criminals. The Courts have to form independent opinion though they may consider the report of such authority as one of the grounds. As for the argument that after acquittal by Court of law a person cannot be F termed criminal, may be technically correct, but may not be correct so far common use of words criminal is concerned. The fact remains that even at present the applicants are accused of the crime and they were so accused of crime in the previous cases in which they were acquitted. It will be seen that in all the previous cases the applicants were alleged to have taken law in their own hands and were alleged to have caused injuries to the complainant party and even attempted to commit their murders and in the commission of said offences they are alleged to have used unlicensed arms. It " ill be seen that now alleged attempts of the applicants have in fact resulted in murder of a person. Admittedly there is dispute between the parties over the land. It is further argued by learned counsel for the applicants that the bail may be refused to the applicants if they are considered to be dangerous, desperate and hardened criminals for the public at large and not to any particular person or party. The wordings of the proviso do not appear to limit the applicability of the disqualification only when the applicants/ f accused are considered to be dangerous, desperate and hardened criminals for public at large and to not any individual or party, specially when there is long history of disputes. attacks and counter‑attacks against the accused. It is stated by Mr: Muhammad Daud Baloch, who is appearing for the complainant in this case, that he will produce all the five unofficial witnesses on 19th of this month when the case is fixed for hearing before the Court. If these five witnesses are examined then only four other official witnesses vie. Tapedar, corpse‑bearer, medical officer and the investigation officer remain to be examined and it will not be difficult for the Court to dispose of the case within next three months. Considering all the facts and arguments mentioned above in my opinion the case of the applicants comes within the mischief of the fourth proviso to subsection (I) of section

497. Cr. P. C. and they are note entitled to bail. Their bail application rejected at this stage. However, if the case is not disposed of within three months as directed by this Court for no fault of the applicants, they are at liberty to repeat the bail applications. M. Y. H. Bail refused.