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--S. 497(1), proviso III--Penal Code (XLV of 1860), Ss. 302, 307, 147, 148 & 149--Bail, grant of, statutory right to--Delay in trial--No allegation levelled that accused were previous convicts or that they had committed such crimes in the past--No other record against such accused persons available in the Police Station--No other cases against accused persons pending except against one accused and that too under Arms Ordinance--Accused or their counsel not in any way responsible for the delay caused in conclusion of trial--Nature or seriousness of offence allegedly committed by such accused persons, held, could not deprive them from statutory right of bail granted to them by S.497(1), proviso III, Cr.P.C.

Rahim Bux and others v. The State P L D 1986 Kar. 224; Nazir Hussain v . Ziaul Haq 1983 S C M R 72; Sanam Shah and 10 others v The State 1986 P Cr. L J 2947; Gul Khan and 2 others v. The State P L D 1986 Kar. 629 and 1986 S C M R 1825 ref.

S. Nasiruddin for Applicants. S. Sarfraz Ahmed, Asstt. A.-G. for the State.

The applicants are facing trial under sections 302, 307, 147, 148, 149, PPC before the learned Vth Additional Sessions Judge, Larkana.

The brief facts giving rise to the present application are that on 28-4-1985, one Pathan s/o Nawab Shaikh and his brother Mola Bux were sleeping in the courtyard of their house. At about 1.00 p.m. they woke up on the barking of dogs. They saw on electric light accused Mashooq, Ghulab, Ali Gul, Anwar, Bagh Ali, Jamal, Allah Bux and Panah, all Shaikh by caste. Accused Panah was armed with rifle, and the rest were armed with guns. Accused Mashooq challenged and declared the complainant as Karo and observed that they will kill him. They raised cries on which the accused opened fire on them. The complainant received firearm injury and he fell down. His father Nawab Shaikh and his brother Mola Bux also received firearm injuries and they also fell down. Thereafter, accused went outside the house, fired in the air, and raised slogans that they had taken revenge from Karo. On their cries and gun shots Fateh Ali s/o Ali Gohar Shaikh, Ghulam Shabbir s/o Mohammad Ali and other villagers came there and saw the accused and also identified them. The complainant then saw his father and brother Mole. Bux who were lying dead due to firearm injuries. One Imam Bux s/o Arz Mohammad challenged the accused in presence of Fateh Ali and Ghulam Shabbir and Arz Mohammad. The accused fired upon him also and he died. Therefter, Chowkidar Rajo Chandio came there and informed that while he was on watch duty, he saw the accused who asked him to stay away and fired on him and he was hit on his neck. After some time Nekmard of the village namely Gul Hassan Khan Chandio came there and who was given the fact of the incident by the complainant, and he directed the complainant to go and lodge the report. The motive, as alleged in the F.I.R. was that accused Mashooq had levelled allegation regarding illicit relation between his wife Mst. Lal Khatoon and complainant Pathan. On account of this, a meeting of brathery was convened and complainant took Holy Quran and assured that the allegation was false, but the accused refused to accept the same. Thereafter, the complainant party shifted from that village and settled in village Biro Chandio a month before the incident. That the police, after necessary investigation challaned the present applicants. The applicants moved an application for bail before the learned trial Judge mainly on the ground of statutory delay, but the same was rejected on 10-6-1987.

I have heard Mr. S. Nasiruddin, learned counsel appearing for the applicants and Mr. S.Sarfraz Ahmed, learned A.A.-G. appearing for the State.

Mr. S. Nasiruddin, learned counsel for the applicants has contended that the applicants were arrested on 29-5-1985 and have remained in custody continuously for more than two years and their trial for the above offence has not concluded. That the delay in conclusion of the trial was not occasioned by any act or omission on the part of the accused /applicants or their counsel. That the applicants are not previous convicts.

Mr. S.Sarfraz Ahmed, learned A.A.G. appearing for the State has opposed the grant of bail to the applicants on the ground that they are responsible for committing four murders which includes the murder of Chowkidar as well, and that the way the murders were committed show that the accused were desperate and dangerous persons and, therefore, they are not entitled to the benefit of proviso III of section 497, Cr.P.C.

I have considered the contentions of the learned counsel and have gone through the bail order passed by the learned trial Judge and the report of the police. There is no doubt that the applicants were arrested on 29-5-1985 and they have remained in custody for more than two years. Even the order of the learned trial Judge does not show that the applicants or their counsel were in any way responsible for the delay caused in conclusion of trial. Mr. S. Sarfraz Ahmed learned A.A.-G. has also not disputed this factual position of the case.

Proviso III to subsection (1) of section 497, Cr.P.C. reads as under:-----

"Provided further that 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.

The IVth proviso to subsection (1) of section 497, Cr.P.C. on which the learned counsel for the State has relied upon reads as under:-

"Provided further that the provisions of third proviso to this subsection shall not apply to previously convicted offender, or to a person who in the opinion of the Court is hardened desperate or dangerous criminal.

In a case of Rahim Bux and others v. The State reported in PLD 1986 Karachi 224, it was held by this Court that:-

"Right of accused to be enlarged on bail in accordance with provisions of proviso III to subsection (1) of section 497 Cr.P.C. is no more a mere discretion of the Court but the accused is entitled as of right. to get bail, if the requirements of proviso III to subsection (1) of section 497, Cr.P.C. are satisfied. In this reported case a decision of the Hon'ble Supreme Court in the case of Nazir Hussain v. Ziaul Haq 1983 SCMR 72 was relied upon."

In the case of Sanam Shah and 10 others v. The State 1986 PCr.Ld 2947 (this was a case in which as many as ten persons were killed). Case of Rahim Bux v. The State; reported in P.L.D. 1986 Karachi 224 was relied upon and bail was granted.

In the case of Gul Khan and two others v. The State PLD 1986 Kar. 629, bail was refused to the applicants on the ground that the offence committed by the accused was heinous one and they could be said. The applicants went before the Hon'ble Supreme Court and the leave was granted by their Lordships of the Supreme Court on the ground that there is a conflict of opinion in the High Court as to interpretation of IVth proviso of section 497, Cr. P. C . this decision is reported in 1986 S C M R 1825. It may be stated here that the above Cr. Bail Application No.27 of 1986 was ultimately allowed by their Lordships of the Supreme Court, the order of the High Court was set aside, and the appellants were released on bail.

In view of the above decision, it is clear that the IV proviso to subsection (1) of section 497 Cr.P.C. will apply if the applicant accused is a previous convict, or he is hardend, desperate, or dangerous criminal. In the present case there is no allegation that the applicants were previous convicts or that they had committed such crimes in the past. Even the report of the S.H.O. Dhamarah dated 23-6-1987 shows that except crime No.54 of 1984, there is no other record available at the police station against the applicants. The report of S.H.O. taluka P.S. Larkana shows that except crime No.54 of 1985 there is one more case pending against accused Gulab under section 13-D of the Arms Ordinance.