P L D 1991 Peshawar 73 (PLP)

Asmatullah Khan, accused‑petitioner who is a Police Constable was caught red‑handed on 21‑12‑1988 by Khairullah Khan Head Warder, while delivering 8.8 grams of heroin duly packed in 40 paper wrappings to an undertrial prisoner Tariq Mahsud under section 302, P.P.C. lodged in District Jail, Bannu. The heroin was mixed up and secured under a recovery memo. Likewise a revolver of .455 alongwith 20 rounds of the same calibre was taken by Abdul Qayum Jail Warder from the accused‑petitioner while he was entering jail to meet the aforesaid prisoner and was handed over to Sarwar Hussain Khan, Superintendent, Bannu which was separately taken into possession. On securing these articles, the Superintendent jail scribed a complaint in writing to the S.P. Bannu, who in his turn directed the local police of Police Station, Saddar, Bannu to register a case against the accused‑petitioner. In consequence a case was initially registered against the accused‑petitioner under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and section 13 of the Pakistan Arms Ordinance, 1965. Upon disclosure by the accused‑petitioner during the investigation the Investigating Officer searched his official box and recovered a polethylene envelope containing 160 grams of heroin and 8 grams of "Hashish" which were duly sealed into parcels. Apart from these narcotics, forged Identity Cards of the petitioner snapped in the uniform of an A.S.I., and S.I., four stars; a small box containing another stamp of S.P.; a star symbolising S.S.G. and a belt were also taken in'to possession under the recovery memo. In consequence, he was additionally charged for offences under sections 420, 467, 468, 471, 472 and 473 of the P.P.C.

2. The accused‑petitioner having failed to secure bail from the lower forum has come up for his release on bail.

3. This application has been pressed under third proviso to section 497(1), Cr.P.C. on the sole ground of delay in proceeding with the case within the statutory period of one year. The learned counsel appearing on his behalf has vociferously contended that there is delay of more than 14 months in the disposal of the case which was not only tantamount to abuse of process of law but violative of the third proviso to subsection (1) of section 497, Cr.P.C.

4. My learned brother, Fazal Elahi Khan, J. on the last hearing had called upon the Investigating Officer to explain the circumstances for delay in putting in challan against the accused‑petitioner in Court. In compliance with the said notice, Muhammad Idrees, S.H.O, Saddar, Bannu is in attendance. He submits that the delay in submitting the challan was occasioned due to investigation extended to R.T.C. Hangu and Kohat from where revolver recovered from the accused had been stolen and that the challan was now complete for submission to the Court concerned.

5. Having considered the arguments canvassed at the Bar,. I am not pursuaded to grant bail to the petitioner. The statutory concession within the contemplation of third proviso to section 497(1), Cr.P.C, is not considered in isolation in that it is subject to the exceptions envisaged therein viz. it cannot be availed of by a previous convict or a person who, in the opinion of the Court is a "hardened, desperate or dangerous criminal." It would thus follow that the concession made available to an accused of a particular category has been expressly denied, inter alia to a dangerous and desperate character. In the A background of the allegations of very serious nature, viz. that he was caught red handed in jail passing on heroin to an accused involved in murder case; that ‑‑ his, pointation more heroin and Hashish was recovered from his official box alongwith snaps of A.S.1, S.I. and stamp of S.P. and the wings of S.S.G, the petitioner prima facie, appears to be a desperate criminal who had debased his 8 own police uniform by committing serious crimes which he was obviously supposed to prevent.

6. In the circumstances, the petitioner has prima facie committed offences of very heinous nature attracting the exceptions enshrined in the third proviso to section 497(1), Cr.P.C. The material collected so far constitutes reasonable grounds for believing the petitioner's involvement in the offences falling within the prohibitory clause of section 497(1), Cr.P.C.

7. The learned counsel appearing on behalf of the State has argued that the petitioner being a police constable the reluctance demonstrated by the Investigating Officer to put in challan in the trial Court appeared to be deliberate with a view to assisting him in the very serious case on the ground of undue delay in the commencement of the trial.

8. I am not inclined to comment on this aspect of the case except to observe that keeping the petitioner in prison without any prospects of the trial commencing at an early date would be prejudicial to the petitioner. It is, therefore, directed that the Investigating Officer shall put in challan against petitioner within a week of the receipt of the file, which is directed to be returned to the quarter concerned expeditiously.

9. This petition, with these observations, stands dismissed. N.H.Q/1186/P Bail refused.