2001 P Cr (PLP)

4. He said that, initially the accused was challaned before the S.T.A. Court, where the bail was refused. However, the jurisdiction of the said Court was challenged before this Court in C.P. 236 of 2000. By order, dated 6‑9‑2000 it was held that the S.T.A. Court had no jurisdiction and that the Court shall return the challan for submission to the Magistrate having jurisdiction. The jurisdiction being that of the Sessions Judge, Hyderabad, the same was sent to him who transferred the case to the IVth Additional Sessions Judge, Hyderabad.

5. The learned counsel for the applicant, Mr. Qurban Ali H. Chohan, states that the applicant/accused is in custody for more than three and a half years and that, the case has not proceeded, in that, there was .no delay that was occasioned due to any act, omission or commission of the accused/applicant. He has, therefore, prayed that, per proviso III of section 497(1), Cr.P.C. he is entitled for bail as a matter of right. He has referred to the case of Moundar and others v. The State PLD 1990 SC 934; Zahid Hussain Shah v. The State PLD 1995 SC 49, Shaukat Ali v. Ghulam Abbas and others 1998 SCMR 228, Rizwan Hussain v. The State 1999 SCMR 131, Tanveer Shahid v. Shaukat Ali and another 2000 SCMR 501, Muhammad Rafique v. The State 1997 SCMR 412, Jaggat Ram v. The State 1997 SCMR

361. All these cases are in respect of section 497(1)(iii) and (iv) provisos. In the case of Zahid Hussain Shah v. The State PLD 1995 SC 49 it has been held:‑‑ "The right of an accused to be enlarged on bail under the 3rd proviso to section 497(1), Cr.P.C. is a statutory right which cannot be denied under the discretionary power of the Court to grant bail. The right of an accused to get bail under the 3rd proviso of section 497(1), Cr.P.C. is not left to the discretion of the Court but is controlled by that provision. The bail under the 3rd proviso (ibid) can be refused to an accused by the Court only on the ground that the delay in the conclusion of the trial had occasioned on account of any act or omission of the accused or any other person setting on his behalf. The bail under the 3rd proviso (ibid) can also be refused by the Court if the case of the accused fell under the 4th proviso to section 497(1), Cr.P.C." All the cases referred to above are also on the same lines in which the Honourable Supreme Court has held that the grant of bail under proviso IIIrd to section 497(1) is a statutory right, however, the same shall be governed subject to IVth proviso. The principle above has also been discussed in an unreported case being Criminal Bail Application No.552 of 2000 in which, I have also held that the statutory right under the IIIrd proviso of section 497(1) cannot be denied but, shall be subject to the IVth proviso which reads as under:‑‑ "Provided further that the provisions of the third proviso to this subsection shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal or involved in terrorism. "

6. The learned counsel for the accused/applicant states that the applicant is neither a hardened, desperate or dangerous criminal and that the pendency of the case will not affect his right. He cannot, Mr. Chohan asserted, be treated or deemed to be a dangerous criminal only on account of the fact that the case is pending against him. He states that the statement of the police cannot be believed straightaway and it is incorrect to depend on the ipso dixit of the police regarding guilt or innocence of the accused and that, the police on investigation holding accused guilty could not be taken to be a correct factum. He has relied on the judgment in the case of Manzoor and 4 others v. The State PLD 1972 SC 81 in which it was held:‑‑ "It is obviously not correct to depend on the ipse dixit of the police regarding the guilt or innocence of an accused person even in the matter of deciding the question of his bail. As repeatedly held by this Court, bail in non‑bailable cases is a matter within the discretion of the Courts, which has to be exercised with due care and caution on the facts and circumstances of each case." For an offence punishable with death or transportation for life, an accused charged with the same is not to be released on bail if there are reasonable grounds for believing that he has committed such an offence. The onus is on the prosecution to disclose those reasonable grounds, and the Court has to examine the data available in the case to find out whether such reasonable grounds exist, to connect the accused person with the crime alleged against him. The Court's belief on the point has to rest on the accusations made in the report to the police, the nature and the credentials of the evidence, which the prosecution proposes to lead in the case, and all the other relevant circumstances surrounding the occurrence. " He has also referred to the passage from the said judgment that:‑‑ "It is important to remember that bail is not to be withheld as a punishment. There is no legal or moral compulsion to keep people in jail merely on the allegation that they have committed offences punishable with death or transportation, unless reasonable grounds appear to exist to disclose their complicity. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run. " Mr. Qurban Ali Chohan, states that the said accused is lodged in the Central Prison, Hyderabad. The Superintendent of the jail has also stated that the conduct and behaviour of the accused is satisfactory and has produced a letter which was addressed to the Sessions Court/Special Judge (S.T.A.), Hyderabad, dated 5‑7‑1999 to that effect, which is retained on record.

7. Mr. Muhammad Azim Panhwar, for the State, does not dispute the tact of him being in jail for over three and a half years and does not dispute that, under proviso IIIrd to section 497(1) an accused ought to be granted bail on statutory grounds. He only states that, as, he was involved in this double murder he should be treated as a hardened; desperate a or dangerous criminal on account of the fact that he has claimed life of two innocent persons by murdering and committing Harabah. He states that the said accused had been overpowered by the complainant and Baitullah alongwith a pistol on his person. Mr. Qurbari Ali Chohan, disputes this fact and states that it is incorrect that he was arrested there. He was arrested the next day from L.M.C.H., Hyderabad, which was accepted by Mr. Muhammad Azim Panhwar on checking from the police papers. The applicant has not been named in the F.I.R. There has been no identification parade. Otherwise also the case has not proceeded due to any fault of the applicant. He is languishing in jail for the last more than three and a half years. He says that the case is one of further enquiry. Mr. M. Azim Panhwar states that despite the fact that he may not 'have been apprehended but, he was named in the F.I.R and the case is proceeding against him. This fact, on reading the F.I.R. seems to be incorrect.

8. I have also perused the case diary of the Special Court S.T.A., Hyderabad where the case remained pending before it was transferred to the IV Additional District Judge. It is apparent that the case has not proceeded because of the absconsion of the other three accused without any act or omission of the accused. I have also read the order of the trial Court in which he has refused to grant bail on statutory ground holding that he had committed Harabah in furtherance of common intention with three other accomplices and can be safely labelled as hardened, desperate and dangerous criminal as such, he fails within the purview of proviso IVth to section 497, Cr.P.C.

9. I have gone through the documents, statements, the challan and heard the arguments of the counsel. I have not found from the record nor has Mr. Muhammad Azim Panhwar been able to point out that there are many cases other than the present case that may be pending against the applicant/accused or in which he may have been convicted: There seems to be a variation in the facts if compared to the narration in the F. I. R. From the report of the Superintendent Central Prison, Hyderabad it seems that his behaviour has been satisfactory in the prison. To hold that a person is hardened, desperate and dangerous criminal there has to be a past record or some record to show that he can be termed as hardened, desperate and dangerous criminal. Only the observation that such type of incidents are increasing day by day cannot by itself term any person as hardened, desperate and dangerous criminal. The prosecution otherwise also has to prove that he is involved in the commission of the offence. Admittedly the death was not caused from any shot that may have been fired by him. In fact it is evident that he fired no shots. There is also nothing to show that he held a pistol, except the statement of the informant. There is an assertion in the F.I.R., without giving the name. Recovery has not been made from the person of the accused. There has to be something on record to show that statutory right can be refused.

10. In view of the above, I hold that the applicant/accused had made out a case for bail under section 497(1), proviso IIIrd of the Cr.P.C. and that he has spent continuously more than two years in jail and that no delay could be caused or, occasioned due to any act or omission of the accused. He, from the record available does not seem to be a hardened, desperate or dangerous criminal.

11. I, therefore, admit the accused to bail on his furnishing security in the sum of Rs.5,00,000 and P.R. Bond in the like amount to the satisfaction of the trial Court. M.A. No. 1907 of 2000: In view of the order passed in the main application has become infructuous and is disposed of accordingly. H.B.T./M‑124/K Bail granted.