2014 PLP 643 (YLR)

SYED HUSSAIN MAZHAR KALEEM, J.

Above titled revision petition has been directed against the order of District Court of Criminal Jurisdiction, Mirpur dated 28-1-2013 whereby the petitioner was refused bail.

2. Brief facts forming background of the revision petition are that a case under sections 324, 337, 340, 450, 34, A.P.C. and section 17 subsection (4) of The Offences against Property (Enforcement of Hadd) Act, 1985 was registered at Police Station, Mangla on the complaint of Nisar Ahmed. During investigation, the accused-petitioner was arrested by the Police. The challan against him was submitted before District Court of Criminal Jurisdiction, Mirpur on 12-9-2007. After arrest, the accused-petitioner applied for bail before the trial Court on 11-12-2012 on the ground of statutory delay in conclusion of trial but the same was refused through the impugned order, hence this revision petition.

3. Learned counsel for the accused-petitioner argued that the trial Court failed to appreciate the relevant provisions of law. The accused-petitioner was behind the bars for more than two years and the case against him was not concluded. He was not a previous convict. There was nothing on record indicating that he was a dangerous, desperate or hardened criminal. The case was covered by third proviso of subsection (1) of section 497, Cr.P.C, thus he was entitled to the concession of bail, therefore, by accepting the revision petition the same may be granted.

4. On the other side, it was argued that the trial Court did not commit any error while refusing bail to the accused-petitioner. It was evident from the record that the offence was pre-planned. The accused-petitioner and others entered in the house of the complainant for committing dacoity. During the occurrence he took away the life of Mst. Nasreen Begum. It was established beyond doubt that he was dangerous and desperate criminal and the case against him was covered by 4th proviso of subsection (1) of section 497, Cr.P.C, therefore, the revision petition may be dismissed.

5. I have heard the learned counsel for the parties and gone through the record of the case.

6. It was not disputed that the accused-petitioner was behind the bars for more than two years. He was not responsible for causing delay in conclusion of the trial, however, the bail was refused to him on the ground that the case against him was covered by 4th Proviso of subsection (1) of section 497, Cr.P.C. For resolution of the matter, the relevant provisions of law are usefully reproduced:-- "Provided further that the Court shall, except when it is of the opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf, direct that any person shall be released on bail, (a) Who, being accused of any offence not punishable with death, has been detained for such offence for a continuous period exceeding one year or in case of a woman exceeding six months 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 in case of a woman exceeding one year and whose trial for such offence has not concluded; Provided further that the Provisions of the foregoing proviso shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person in the opinion of the Court, is a hardened, desperate, dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life."

7. The plain reading of the aforesaid Provision of law shows that three categories of the accused cannot be allowed bail on the ground of statutory delay in conclusion of the trial (i) a previously convicted offender, for an offence punishable with death, or imprisonment for life (ii) a person who in the opinion of the Court, is an hardened, desperate and dangerous criminal (iii) the accused for an act of terrorism punishable with death or imprisonment for life. It can safely be said that the above stated conditions were imposed to empower the Courts to refuse bail under those extraordinary provisions of law to offenders previously convicted with death or imprisonment for life and those alleged for committing dacoity, rape, abduction for ransom or involved in such other terrorist activities as their liberty could be a threat to the society. To decide the question that the case of an accused is covered by 4th Proviso to subsection (1). of section 497, Cr.P.C, the manner of occurrence, previous conduct and criminal record of the accused has to be taken into consideration meaning thereby that the proposition has to be resolved in light of evidence brought on record by the prosecution.

8. In the present case it was alleged that the accused petitioner along with others entered in the house of the complainant to commit dacoity and during the occurrence he murdered his wife. It will not be out of place to mention here that there was no enmity between the parties, thus the question of false implication does not arise. The accused-petitioner entered in the house of a peaceful and law-abiding citizen in odd hours of the night where he brutally took away the life of an innocent lady. It was evident from the record that the offence was committed in a desperate manner. Such act could only be expected from a hardened and dangerous criminal. There was no doubt that grant of bail to such an accused could be a threat to normal peaceful social life, thus the trial Court rightly refused the same to the petitioner by observing that the case against him was covered by 4th Proviso of subsection (1) of section 497, Cr.P.C. Upshot of the above discussion is that the revision petition having no substance is hereby dismissed. HBT/8/Sh.C.(AJ&K) Petition dismissed.