Find a Lawyer

Criminal Miscellaneous No. 130/D of 1985, decided on 3rd December, 1985.

--S. 497(1) (b)‑Penal Code (XLV of 1860), S. 302/307/34‑Bail Accused remaining in custody for more than two years and delay in trial of‑accused not occasioned due to his fault‑Accused no where proved to be a previous convict either in a case of moral turpitude or otherwise‑Accused as such having a statutory right to be released on bail‑Bail allowed.

‑‑ S. 497 (1) (b), fourth proviso‑Bail‑Bare charge of hardened, desperate or dangerous criminal‑Not sufficient to prove an accused as such‑When a bare charge was allowed to be a proof for a person, declaring him a hardened criminal and desperate character, there could, held, be no end to such alienations and there would be no way for a person innocently charged in certain cases‑Levy of a charge was somewhat different than to prove it‑'Unless a person was proved to be guilty and he was convicted thereunder and all superior forums kept verdict of conviction intact, it would not be said that that person was a previous convict‑Where there was nothing against a person except bare allegation or mere charge, for all intents and purposes he would be presumed to be as much a responsible citizen as others of soft character.

Mazhai Alam Khan for Petitioner.

Hamesh Gul Khan for A. A.‑G. for the State.

Date of hearing : 3rd December, 1985.

This order should be read in continuation of my order dated 3‑12‑1985 whereby I had allowed bail to the accused‑petitioner for the reasons to be recorded later on.

2. Abdul Haleem accused‑petitioner sought the indulgence of this Court through the instant criminal miscellaneous petition for his release on bail in a case under section 3021307/34, P. P. C. registered against him vide F. I. R. No. 51, dated 19‑5‑1983 of Police Station Ghazni Khel, Bannu. He had earlier applied for his release on bail in the Court of the Illaqa Magistrate who, however, rejected his application per order dated 19‑7‑1985.He then approached the Court of the learned Additional Sessions Judge, Lakki where too his petition for bail was rejected per order dated 23‑7‑1985.

3. Facts in brief are that on 19‑5‑1983 at 2300 hours Abdur Rehman lodged a report in Police Station Ghazni Khel that while he alongwith his son Ali Marjan were present in their house they beard noise of a tractor whereupon they came out of their house. While Ali Marjan his son was ahead of him by few paces he was bringing up the rear. They saw Shah Kaleem, Abdul Haleem accused petitioner, Aziz Khan and Karim Khan sons of Abdullah Khan busy in cutting 'Shaftal' crops. In the meantime they noticed a person bringing the tractor towards their house where they were standing. When Shah Kaleem etc. saw them the former directed his brother Abdul Haleem to kill. Whereupon, Abdul Haleem fired a shot at Ali Marjan with which he was hit and fell down to the ground. Simultaneously with that Shah Kaleem, Karim Khan and Aziz Khan fired at the complainant and Ali Marjan deceased which proved ineffective. Ali Marjan subsequently succumbed to the injuries and accordingly a case under section 302/307/34, P. P. C. was registered against the persons charged.

4. In this case I do not feel inclined to enter into the merits of the case firstly because it is a bail stage and secondly the only question for determination before me is whether Abdul Haleem accused‑petitioner is entitled to bail in terms of section 497(1) (b) of the Criminal Procedure Code. It would be of advantage to reproduce the said section it reads :‑

"When any person accused of any non‑bailable offence is arrested or detained without warrant by an officer‑in‑charge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years.

Provided ..

..

Provided ..

..

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) . ..

(b) 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."

Vide Ordinance No. XXXII of 1983 a further proviso was added which is to the following effect

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

As is evident from the record, the case against the accused‑petitioner was registered on 19‑5‑1983. The accused‑petitioner had applied for his bail before arrest which was initially granted to him on 12‑6‑1983 and was recalled on 26‑6‑1983 on which date be was remanded to custody and since then the accused‑petitioner is behind the bars and by now undoubtedly he has remained in custody for more than two years and in the ordinary course under the above section of law he has a statutory right to be released on bail because even the orders refusing bail of the two Courts below nowhere suggest that the delay in the trial of the accused has occasioned due to his fault. The learned Illaqa Magistrate, however, refused bail to tile accused‑petitioner on the following grounds :

In view of the above observation, I am of the opinion that the accused petitioner is a previous convict, .dangerous, desperate and morally an unsound character. The provisions of the third proviso of section 497, Cr. P. C., therefore, cannot come to his rescue. Bail petition hence, rejected. While announcing this order, I am forti fied by the reference "Muhammad Usman etc. v. The Stale" reflected in 1985 P Cr. L J 1310."

The learned Additional Sessions Judge, Lakki refused bail to the accused petitioner on the following reasons :‑

"The record shows that petitioner (Abdul Haleem) was arrested on 26‑6‑1983 and till today over two years have expired and uptil now the case has not been sent to this Court for trial. No doubt accused/petitioner is in custody in connection with this case for over two years but the concession of bail as contained in proviso 3 of section 497, Cr. P. C. cannot be extended to him because of his previous desperate character. He is amongst the ten most wanted and a history sheeter of Police Station, Ghazni Khel.

In such circumstances, accused petitioner is not entitled to bail. His bail application is thus rejected. File to R. R. after completion."

Alongwith the bail application the accused‑petitioner has filed in this Court a copy of the order dated 19‑5‑1985 of Mr. Saeed Ahmad Akhtar, Additional Commissioner D. I. Khan Division wherein the entire history of the cases registered against the accused‑petitioner and the fate thereof has been elaborately discussed. The Additional Commissioner came into picture when Abdul Haleem preferred an appeal against the order of the Tribunal under West Pakistan Control of Gunda ordinance, 1959 vide which by his order dated 2‑12‑1984 the said Tribunal had declared the accused‑petitioner as a Ghunda and had directed him to furnish bonds in the sum of Rs. 30,000 with two sureties in the like amount to keep peace or in default a detention for one year. The learned Additional Commis sioner while accepted the appeal and set aside the order of the Tribunal directing his immediate release if not wanted on account of any other liability he observed that "I have gone through the case thoroughly. The conviction sheet of the appellant shows that in case F. I. R. No. 36, dated 17‑7 1952 Police Station Tajori under section 497/498, P. P. C. he was con victed and given two years' R. I. but in appeal he was acquitted by the learned Sessions Judge on 18‑2‑1953". In F. I. R. No. l dated 1‑1‑1952 under section 307/34, P. P. C., P. S. Tajori the appellant was acquitted. Under F. I. R. No. 44, dated 19‑12‑1952 under section 497/498, P. P. C. the accused was acquitted. Under F. I. R. No. 4, dated 23‑1‑1971 under section 497/498, P. P. C., P. S. Tajori the accused was convicted and given one and half years' R. I. In this case he went in appeal to the Court of Sessions where from on 8‑4‑1972 he was acquitted. As for his conviction under they Ghunda Ordinance by the Tribunal, as observed earlier the accused‑petitioner was acquitted by the appellate authority i. e. the Additional Commissioner D. I. Khan Division. Thus, in the presence of the material nowhere the accused has been proved to be a previous convict either in a case of moral turpitude or otherwise. If a bare charge allowed to be a proof for a person declaring him a hardened criminal and is character, there can be no end to such allegations and there will be no way for a person innocently charged in certain cases. The levy of a charge is somewhat different than to prove it. Unless a person is proved to be guilty and he is convicted thereunder and all the superior forums keep the verdict of conviction intact it can be said that the person is a previous convict. If, however, there is nothing against a person except toe bare allega tion or a mere charge for all intents and purposes he is presumed to be as much a responsible citizen as others of soft character. Since the prosecution has failed to establish the allegation that the accused‑petitioner was previous convict or is a hardened desperate or dangerous criminal, he has as of right to be extended the provisions of proviso 3(b) of section 497, Cr. P. C.

5. Accordingly without touching the merits of the case since it has, been established that the accused‑petitioner has remained in custody for more than two years, he is entitled to bail. Accordingly he is allowed bail E in the sum of Rs. 1,00,000 with two sureties in the like amount each to the satisfaction of any Magistrate First Class in Bannu District.

M. Y. H. Bail granted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.