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Criminal Bail Application No. 214 and Miscellaneous Application No. 184 of 1986, decided on 21st May, 1986

‑‑‑S. 497, third & fourth provisos‑‑Bail‑‑Whether bail could be denied to an accused on basis of any disability provided in provisos to S.497‑ Factors, to be taken into consideration, being his previous conduct; his reputation in society his dealing with fellow human beings and manner and methodology in which he had planned and executed episode on fateful day‑‑On basis of such material, Court would be able to decide whether accused was "hardened, desperate or dangerous criminal.

Nazir Hussain v. Ziaul Haq and others 1983 S C M R 72 ref

‑---Words used in statutes are to be interpreted not in literary sense but in setting in which they are used‑‑Words should be interpreted in context of whole scheme of things which they are to serve‑‑Legislative intent is to be gathered from object for which statute was enacted to achieve.

‑‑‑S. 497, third & fourth provisos‑‑Word "Criminal"‑‑A purely literary translation of word 'Criminal' not helpful in achieving object for which clause was inserted in body of S.897, Criminal Procedure Code‑-- Background of introduction of provisos, stated.

‑‑‑S. 497, third proviso‑‑Bail‑‑Courts have a right to examine each case on its own facts and if they feel that accused was s normal human being who has not been a habitual Wonder but has himself fallen victim to crime rather than a source of crime, then Court would extend effect of third proviso and release such an accused‑‑Case of a heartless, desperate and dangerous criminal is to be examined not so much from punitive point of mew but more so from preventive point of view‑‑If accused person exhibited a beastly and cruel instinct of character he can be described as 'desperate and dangerous criminal' and Court can refuse to admit him to bail whether he had suffered any previous conviction or not and whether he had been previously adjudicated to be guilty or not.

--‑‑‑S. 497‑‑Bail‑‑Accused with his five other accomplices barged into bank in broad‑daylight at peak business hour and snatching weapons from Chowkidars overpowered and overawed every one present and after bagging booty made good their escape‑‑Accused, held, rightly put in category of offenders covered by fourth proviso to S.497, Cr.P.C. and rightly refused bail by Court.

Muhammad Hamza Khan for Applicant.

Imam Ali Memon for the State.

This is an application for bail on behalf of an accused who is facing trial before the learned Vth Additional Sessions Judge, Hyderabad (Hudood Hyderabad Division, Hyderabad Sind) under section 17 (3) of The Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (Harraba) which carries punishment of amputation of his right hand from wrist and of his left foot from ankle. If this offence is tried under the normal laws the crime would fall under section 395, P.P.C. which prescribes imprisonment upto life term.

The facts given in the F.I.R. which was lodged by Muhammad Salim Manager of the National Bank of Pakistan, Latifabad Branch, Hyderabad are that on 10th of December, at about 10‑30 a.m. when he was busy with his work in the Bank with his staff 6 persons including the present applicant intruded in the Bank and after manhandling and threatening the Chowkidars and other staff created panic in the Bank. They terrorised every one present and overpowered the manager and the cashier and escaped with the booty of Rs.31,900. They also took away the two guns and cartridges of the two Chowkidars. The F.I.R. was lodged within a couple of hours of the incident. It is stated at the Bar by the learned counsel for the applicant that 4 accused have never been arrested and so far 2 were arrested. One of them namely Din Muhammad has escaped from the police custody and the present applicant is still confined in the Nara Prison awaiting his trial. This accused was arrested on 12th of December, 1983. The learned counsel has chosen not to argue the merits of the case although he casually mentioned several points including doubts about identity of the accused. The learned counsel has confined himself to the legal right which is now available to the accused for obtaining bail by force of third proviso to section 497, Cr.P.C. which runs as under:‑

"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 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 and whose trial for such offence has not concluded."

The learned counsel, heavily relied on the observations of the Supreme Court in Nazir Hussain v. Ziaul Haq and others 1983 SCMR 72 in which it is held that after this proviso has been inserted in section 497, Cr.P.C. no discretion is left to the Court to refuse bail to an accused person who is covered by this proviso. Accused can claim bail as a matter of right and it is mandatory for the Court to grant bail to such an accused. An argument advanced before the Supreme Court to interpret the word "shall" in this proviso to mean as "may" was repelled by the Honourable Judges in the following words:‑-

"We accordingly repel the argument of the learned counsel and hold that word "shall" in third proviso will have to be read in its ordinary sense. That being so, there is nothing in the entire proviso, its main part as also sub‑clause (b) to show the grant of bail on ground of delay in cases covered thereunder has been left (in a general way) to the discretion of the Court. We also do not agree with the argument that the matter being entirely of the discretion of the Court it is empowered to take into account the expected apprehended delay."

This observation has been followed in a number of cases decided by the High Courts and accused have been granted bail where delay has been occasioned in conclusion of their trial subject of course to the condition that the delay is not attributable to the accused themselves.

In view of the above discussion there would be no choice but to hold that this accused would also be entitled to bail as he has been under detention for a period over 2 years. Although he had become entitled to bail after detention in prison for only one year because he is facing trial for offences not punishable with death. The right conferred by 3rd proviso is however, curtailed in certain cases. The controlling proviso which is 4th proviso to section 497 Cr.P.C. and which curtails the right in the 3rd proviso is to the following effect.

"Provided further that the provisions of the third proviso to this subsection 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."

Now the only question that remains to be determined is whether bail can be denied to the accused on the basis of any disability provided in the 4th proviso namely whether it has been shown that he is "previously convicted offender" or he is a person who can be described as "hardened desperate or dangerous criminal". Surely there is no material to show that he is a previous convict and it remains to be seen whether his case falls under the other three categories of persons mentioned above. If it can be shown that he suffers from any or more of them he would loose the advantage granted to him by the 3rd proviso. To determine this fact a number of factors will have to be taken into consideration. His previous conduct, his reputation in society, his dealing with fellow human beings and indeed the manner and methodology in which he has planned and executed the episode on the fateful day. How he behaved and conducted himself at the time of committing the crime in which he is involved. On the basis of this material the Court would be able to decide whether he is "hardened, desperate or dangerous criminal."

The very fact that this accused in the company of 5 others in broad‑daylight at 10‑30 a.m. in the morning intruded into the bank where two armed guards were on duty and a large number of staff was busy, he alongwith others overpowered all of them, snatched away the arms and carried out their plans successfully, itself shows that conduct and behaviour exhibited by them at the time of committing the crime was of no other person than of a dare devil or of desperate and dangerous criminals. This finding would have concluded the fate of this bail application, but the learned counsel has cited 2 cases which deserve to be mentioned. These cases are:

(1) Rahim Bux and others v. The State, P L D 1986 Kar. 224 and

(2) Muhammad Khan v. The State 1985 P Cr. L J 958

The first is latest in point of time in which accused charged with similar offences have been released on bail. In the second case the bail was granted by Abdul Razzak Thahim, J. on the sole consideration of delay in the conclusion of the trial of the accused in that case.

In case reported in 1986 P L D Kar. 224 my learned brother Saeeduzzaman Siddiqui, J. has very ably distinguished the word 'criminal' from 'person' through the aid of different dictionaries in which the definition of word criminal has been given. He has observed that the adjectives "hardened, desperate and dangerous" used with the word "person" are to be interpreted differently from the cases where the same adjectives are used with the word "criminal". According to the learned Judge unless a person is convicted of some offence and is at least once adjudicated to be guilty of a crime, he cannot be termed as criminal. In other words a previous conviction of a person is necessary to put him in the class of criminals. This distinction scholarly brought out by the learned Judge tends to support the arguments of the learned counsel for the applicant that as his client does not carry a stigma of any previous conviction, his case would, therefore, not be hit by the 4th proviso. In my humble opinion the words used in the statute are to be interpreted not in the literary sense but in the setting in which they are used. They should be interpreted in the context of the whole scheme of things which they are to serve. The legislative intent is to be gathered from the object the statute was enacted to achieve.

In my humble opinion a purely literary translation of the word "criminal" would not be helpful in achieving the object for which the clause was inserted in the body of the Section. The background of introduction of proviso four is that by operation of the third proviso which leaves no discretion with the Court to deny bail to an accused, however heinous the crime may be and howsoever, severe his culpability, in that crime may have been, a large number of under trials, who' could never be risked to be sent out of prison, were set at liberty. It did not take long to realise that the indiscriminate release of criminals from jails offered further opportunities to these offenders to spread their nets and strike on new victims. Such criminals, who were apprehended by the law enforcing agencies after years of chase and hot pursuit were set at liberty to resume their trade. It was to control this situation that the 4th proviso was enacted as a proviso to the third proviso. It merely restores to the courts some of the discretion from which they were completely stripped of by force of the third proviso.

Now the Courts have a right to examine each case on its own facts and if they feel that the accused is a normal human being who has not been a habitual offender but has himself fallen victim to the crime rather than a source of the crime, then the Court would extend the benign effect of the third proviso and release such an accused on bail. But the case of heartless, desperate and dangerous criminal is to be examined not so much from the punitive point of view but more so from a preventive point of view. He is a terror to the society and innocent men and women are to be protected from his claws. Such a hardened criminal though booked for the first time may have 4 long list of his exploits in the past. He may have been dodging the arm of law with impunity without any previous conviction but when once trapped and put on trial should be dealt with differently. Could he be released on bail because the literal meaning of the word "criminal" excludes him from the compass of the 4th proviso.

Could a Phoolan Devi, a Sultana, a Rahim Hingoro trapped after years of chase claim the benefit of third proviso and successfully avoid the 4th proviso because they were not previous convicts Would they not be called criminals, although they are Crime Personified and the image produced in the mind after their names are mentioned "Criminality Thy name is Sultana Criminality Thy name is Phoolan Devi, criminality Thy name is Rahim Hingoro.

In my opinion none of these and many more of their kin who never were apprehended, tried and convicted before their trial, could claim immunity from the 4th proviso. But if the literal meaning is assigned to the word "criminal" they would all get away on bail, because they were never convicted before.

The learned Judge while repelling the arguments of the learned A.A.‑G. in the above case has brought out the distinction that the three adjectives "desperate, hardened and dangerous" have not been used alongwith the word "person" but with the word "Criminal". According to the learned Judge:

"The two words, namely 'person' and 'criminal' are not interchangeable and carry different meanings in the English language."

With this distinction in view the learned Judge proceeded to hold:-

"On a careful reading of the fourth proviso in the light of the above dictionary meaning of the expression, desperate, hardened and dangerous criminal, I am in no doubt that these expressions do not cover a person against whom there is only an accusation in the shape of a complaint or F.I.R. The word 'criminal' both as defined in the ordinary dictionaries as well as in Law dictionaries means a person who has been convicted or adjudged to be guilty of an 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 the offence charged with, cannot be treated as a criminal, much-less a dangerous, desperate or a hardened criminal'. In the case before me none of the accused persons have been convicted so far of any offence. It is also not contended that they have been adjudged to be criminal in any proceedings earlier. In these circumstances in my view the learned trial Judge was not justified in declining concession of bail to these persons under the third proviso to section 497, Cr.P.C. merely on the basis that the case registered against them disclosed allegations of serious nature or that at the time of commission of alleged offence the applicants had allegedly shown some degree of anxiety or desperation."

If the above interpretation reflects the legislative intent of the fourth proviso then the expression "previously convicted offender" used earlier would become irreconcilable with the expressions "hardened, desperate or dangerous criminal" because both would apply to the same class of offenders i.e. previous convicts. If that was the intention then it was enough to say that "Previous Convicts" are excluded from the benefit of the third proviso. The very' fact that two categories of offenders are separately described shows that the class of offenders described in the expression "hardened, desperate or dangerous" is separate from the class of "previous convicted offender," This supports the view that "a hardened, desperate or dangerous criminal" should not necessarily be a previous convict or may not have been adjudged to be so in some earlier proceedings. In this view of the matter in my humble opinion it would be open to the Court to examine each case on its own facts. If the accused person applying for bail has during commission of crime shown extraordinary and unusual courage and determination and has exhibited a beastly and cruel instinct of character, he can be 'described as "desperate and dangerous criminal I and the Court can refuse to admit him to bail whether he has suffered any previous conviction or not and whether he has been previously adjudicated to be guilty or not

In the circumstances of the present case the present accused with his five other accomplices barged into the Bank in broad daylight at peak business hour and ignoring the armed guards and trusting on their skill to weild their own weapons, snatched the weapons, of the Chowkidars, overpowered and overawed every one present and after, bagging the booty made good their escape.

The learned Vth Additional Sessions Judge has rightly put the accused in the category of offenders covered by the 4^th proviso and has rightly refused bail to the applicant.

I would also dismiss this application for the same reasons.

It is to be noted that practically all the evidence in the case has concluded and only one of two witnesses remain, I would direct the learned Sessions Judge, who is trying this case. to conclude this trial within one month after the vacations.

M.Y.H Petition dismissed

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