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Bail Application No. 6 of 1986, decided on 17th February 1986.

‑‑‑S. 497(1), proviso third‑‑‑Bail‑‑Conviction for offence of disobedience of order of a Court to appear before it, held, is not a conviction in an offence which would make third proviso inapplicable to such a previously convicted offender.

‑‑‑S. 497(1), proviso third‑‑Bail‑‑Offences against which society or State needs protection are offences of substantive nature inflicting or likely to inflict serious type of injury to society or State‑‑Grant of liberty to accused person who has already remained in judicial lock‑up for statutory period of detention without his trial having been concluded, should not be denied simply on ground that he is likely to commit minor offences or relatively unimportant offences if released on bail.

‑‑--S. 497 (1), proviso third‑‑"Previously convicted offender" is an offender previously convicted of an offence involving moral terpitude or an offence detrimental to national interest or interest of society as a whole‑‑Benefit of third proviso to subsection (I) of S.497, Cr.P.C. could not be denied to each and every convicted person irrespective of the nature of offence of which he had been convicted previously‑‑Distinction has to be drawn between a person who is convicted of offence of a serious nature and one who is convicted of an ordinary offence not impinging upon his character as a good citizen of State.

Mushtaq Raj for Petitioner.

Nazir Ahmad Ghazi, Public Prosecutor for the State.

Muhammad Bashir Chaudhry for the Complainant.

The accused‑petitioner was charged with offences under sections 380/409/420/468 and 471, P.P.C. as per F.I.R. No. 164/81, dated 19‑8‑1981, P.S. Naulakha, Lahore. It is stated by Noor Muhammad, Inspector, C.I.A., Lahore, who was Investigating Officer in this case that during investigation by the Naulakha Police, the accused had been released on bail and after the investigation was entrusted to the C.I.A. on 21‑11‑1981, the accused did not appear before him and since the matter was still under investigation, he moved a Military Court, as a result of which the said Court issued a notice, dated 8‑3‑1982 to the accused directing him to appear before it on 15‑3‑1982 but the accused did not appear there on the said date, as a result of which, he was declared proclaimed offender. He further states that he arrested the accused on 23‑5‑1982 and produced him in the Military Court and got his physical remand from the said military Court and sent him to the judicial lock‑up after the expiry of period of remand. He also states that Military Court had taken proceedings on account of the failure of the accused to appear before the said Court in spite of notice and after his trial, convicted him and sentenced him on 26‑12‑1982 to imprisonment for two years, for disobeying its lawful order to appear before it on 15‑3‑1982. According to him and according to the papers produced by the learned counsel for the accused too, the accused served the said sentence by 23‑3‑1984 and thereafter, he was considered having been arrested in F.I.R. No. 164/81 and his status, converted from that of a convicted person to an undertrial prisoner and from 24‑3‑1983 onwards, he is in jail in that capacity.

2. From the above resume of facts, it appears that, the accused has been continuously in detention since 23‑5‑1982 either as an undertrial prisoner in connection with F.I.R. No. 164/81 or as a convicted prisoner in connection with that very F.I.R., namely, F.I.R. No. 164/81. His continuous detention in jail, has, therefore, been established beyond any shadow of doubt.

3. Now excluding the period of his sentence, served by him in jail, and the period earlier to that, he has still been continuously in detention for a period of more than 2 years. His case is, therefore, covered by third proviso to subsection (1) of section 497 , Cr.P.C. which qualifies him to grant of bail.

4. Learned P.P. has, however, vociferously contended that since the petitioner is a previously convicted offender, as shown above, he canny; be granted bail by this Court as proviso to 3rd proviso to subsection (1) of section 497, Cr.P.C. makes 3rd proviso inapplicable to such persons and thus puts an embargo on the powers of this Court to grant bail to such a person even if statutory period of detention has expired without his trial having been concluded. However, having regard to the purpose' for which proviso to third proviso appears to have been promulgated, I am of the view that conviction for offence of disobedience of order of a Court to appear before it is not conviction in an offence which would make the third proviso applicable to such a previously convicted offender. The proviso to 3rd proviso to subsection (1) of section 497, Cr.P.C. lays down 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. The purpose of later part of the said proviso is clearly to protect the society against crimes which are most likely to be committed by hardened, desperate and dangerous criminals if they are released on bail even after they have suffered statutory period of detention without their trial having been concluded. Previously convicted offenders have been placed at par with hardened, desperate and dangerous criminals because their previous conviction joined with, the circumstance of their having committed another offence now is a testimony to their propensity towards crime and they have also been considered to be likely to commit crimes when released on bail after expiry of statutory period of detention in the judicial lock‑up in the case against them. The nature of offence of which such an accused person has been convicted previously is normally an index to the type/of offence he is likely to commit again. In the present case it is an offence of disobedience of an order of a Court. However, the offence against which the society or the State needs protection are in my opinion offences of substantive nature inflicting or likely to inflict serious type of injury to the society or the State. Grant of liberty to an accused person who has already remained in judicial lock‑up for the statutory period of detention without his trial having been concluded should not be denied simply on the ground that he is likely to commit minor offences or relatively unimportant offences if released on bail. In these circumstances, I am inclined to think that the words "previously convicted offender" mentioned in the said proviso to the 3rd proviso to subsection (1) of section 497, Cr.P.C. is an offender who has previously been convicted of an offence involving moral turpitude or an offence detrimental to national interest or interests of the society as a whole. The benefit of third proviso to subsection (1) of section 497 Cr.P.C. cannot be denied to each and every convicted person irrespective of the nature of the offence of which he has been convicted previously and distinction has to be drawn between a person who is convicted of an offence of a serious nature and one who is convicted of an ordinary) offence not impinging upon his character as a good citizen of the State. The conviction for an offence of disobedience by an accused) person of the order of a Court requiring him to appear, in the said Court does not appear to my mind to be a conviction which could bar an accused person from availing of the benefit of third proviso to subsection (1) of section 497, Cr.P.C. as the said disobedience does not show him to be a man of depraved character likely to commit offences of serious nature after he is enlarged on bail. On this view of, the said proviso, therefore, I think that the mere fact that the accused has been convicted of the offence of disobedience of the order of the Court to appear before it, does not make the said third proviso inapplicable to the case of petitioner and accordingly does not bar the grant of bail to the accused petitioner on the bats of expiry of statutory period of more than one year's continuous detention fixed by the said third proviso and he is entitled to grant of bail on the basis of said third proviso notwithstanding his said conviction.

5. As for the amount of bail, the total defalcated amount alleged in this case comes to Rs.13,62,402.50. Subsection (7) of section 5 of Offences in Respect of Banks (Special Courts) Ordinance, 1984, lays down that in case of grant of bail to an accused person, where the charge specifies any amount in respect of which the offence is alleged to have been committed, the amount of bail shall not be less than twice the said amount. I, therefore, grant the accused petitioner bail in the sum of Rs.28,00,000 (rupees twenty eight lacs) with one surety in the like amount to the satisfaction of Registrar of this Court.

M.A.K. Bail allowed.

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