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Criminal Miscellaneous No. 887/B of 1986, decided on, 24th April, 1986.

‑‑‑S. 497(1.), provisos 3rd & 4th‑‑Penal Code (XLV of 1860), S. 302‑ Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17‑‑Bail, grant of‑‑Petitioner neither a previous convict nor having any previous record of committing any such crime or of having been suspected as a "hardened, desperate or dangerous criminal"‑ Petitioner behind bars for a continuous period exceeding over two years for no fault of accused yet trial not concluded‑‑Petitioner, held, earned statutory right to be released on bail under cl. (b) 3rd Proviso to subsection (1) of S.497(l), Cr.P.C., in circumstances.

Muhammad Bashir v. The State 1985 P Cr. L J 2484 and Muhammad Khan v. The State 1985 P Cr. L J 2485 ref.

Syed Ehsan Qadir Shah and Ehetsham Qadir Shah for Petitioner.

Ch. Abdur Rashid for the State.

Muhammad Shahid Iqbal petitioner, who has been involved in a case under section 302/34, P.P.C. read with section 17 of the Offence against Property (Enforcement of Hudood) Ordinance, 1979 arising out of F.I.R. No. 135, dated 12‑3‑1984, has sought to be released on bail on statutory ground, as his plea for bail on merits was already declined by this Court on 17‑7‑1985, while disposing of Criminal Miscellaneous No. 1661‑B of 1985.

2. It has been alleged in the F.I.R. that on 12‑3‑1984 at 6‑30 p.m., Muhammad Tufail an employee of Muhammad Abdullah and Sons, 23‑Railway Road, Lahore, received a sum of Rs. 68, 000 from Muhammad Latif Butt of Misri Shah in the presence of Muhammad Babu complainant and Ghulam Rasul, another employee of the said Firm. Muhammad Tufail put the currency notes in an empty bag of cement alongwith his identification card and currency note of Rs.50 and started for his home. In the meantime two unknown persons emerged at the scene. One of them snatched the bag containing money and documents from Muhammad Tufail, who raised an alarm. Ghulam Rasul secured one of the assailants in clasp. The other assailant fired at him with his revolver. Ghulam Rasul sustained an injury on his chest. Muhammad Tufail also sustained a bullet injury on his left flank and on his left thigh. The complainant and Muhammad Sadiq tried to apprehend the assailants but without success. The assailants made good their escape with the bag containing money. Muhammad Tufail and Ghulam Rasul were removed to the hospital (Mayo Hospital, Emergency Ward, Lahore) in injured condition, but Ghulam Rasul succumbed to the injuries while on his way to the hospital.

3. Subsequently, on the same day i.e. on the day of occurrence, statement of Muhammad Idrees P.W. was recorded under section 161, Cr. P. C. who named the petitioner, Muhammad Shahid Iqbal as one of the offenders.

4. As already observed, the present petition for bail is based on statutory ground, that is to say the petitioner wants to avail of the provisions of third proviso to subsection (1) of section 497, Cr.P.C. which are to the effect that a Court shall direct that any person shall be released on bail, 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.

In the present case, the petitioner was arrested on 24‑3‑1984. The trial in the case has not yet commenced, although his continuous detention for such offence has exceeded two years.

5. Earlier the petitioner applied before a learned Additional Sessions Judge, Lahore, to be released on bail on the ground of delay, but his application has been dismissed on the ground that provisions of the third proviso were not applicable to the case of the petitioner as he was a hardened, desperate and dangerous criminal.

6. Fourth proviso to subsection (1) of section 497, Cr.P.C. has been added by Ordinance XXXII of 1983, which reads:‑-

"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."

6. In case of petitioner, he is admittedly not a previous convict. The point to be considered is as to whether he can justifiably be opined to be a hardened, desperate or dangerous criminal within the meaning of fourth proviso reproduced above. The learned counsel for the State as also the police officer who has produced the records, have frankly conceded at the Bar that there was no previous record of the petitioner of having committed any such crime or of having been suspected as a hardened, desperate or dangerous criminal. No doubt, as per circumstances of the present case, the petitioner is accused of having committed a very heinous offence of extortion and murder but he has not so far been proved to be a criminal qua the offences of which he is accused. As a matter of fact, fourth proviso is relatable to the offenders and not to the offence. The learned Additional Sessions Judge has placed reliance on two judgments delivered by the Karachi High Court in Muhammad Bashir v. the State 1985 P Cr. L J 2484 and Muhammad Khan v. The State 1985 P Cr. L J 2485. In both these cases, bail on the ground of delay was refused in view of the aforementioned amendment, whereby proviso four has been added to subsection (1) of section 497, Cr.P.C. and it was observed that the petitioners were dangerous criminals and belonged to a gang of criminals. It was noticed by the learned Judge of the Karachi High Court that the petitioners were members of gang of Karam Khan who was facing trials in large number of cases of identical nature. The petitioner is obviously not a gangster. In his case, fourth proviso to subsection (1) of section 497, Cr.P.C. cannot be pressed into service and he cannot justifiably be considered as a hardened, desperate or dangerous criminal. The delay in the trial cannot by any stretch of imagination be attributed to the petitioner or any other person acting on his behalf. In the circumstances, he has earned the statutory right to be released on bail, under clause (b) of third proviso to subsection (1) of section 497, Cr.P.C. The petitioner is, therefore, admitted to bail in the sum of Rs.50,000 with two sureties, each in the like amount to the satisfaction of the A.C. City Lahore.

S.G.D Bail allowed.

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