Find a Lawyer

Criminal Bail Application No. 857 of 1986, decided on 15th October, 1986.

‑‑‑S. 497(1), proviso third‑‑Penal Code (XLV of 1860), S. 302‑‑Hardened, desperate or dangerous criminal‑‑Opinion, how formed‑‑Mere report of Police or bare charge of offence without indicating facts enabling Court to form its own opinion, held, would neither be relevant nor constitute sufficient material to hold accused as hardened, desperate or dangerous criminal‑‑View that only previous convict could be considered hardened, desperate or dangerous criminal, not accepted.

P L D 1986 Pesh. 92 and P L D 1986 Kar. 437ref.

‑‑‑S. 497(1), proviso third‑‑Penal Code (XLV of 1860), S. 302‑‑Bail, grant of‑‑Plea of statutory delay‑‑Accused alongwith others murdering father for misconduct of his son‑‑Head of deceased severed and taken away‑‑Murder of father for misconduct of his son and severing of his head, held, was brutal, callous and barbarous act on part of murderers which could only be done by hardened, desperate or dangerous criminal who would not be entitled to concession of bail under third proviso to S.497(1), Cr.P.C.

Abdul Haleem Pirzada for Applicant.

Syed Zawar Hussain Jafferi, A.A.‑G: for the State.

Habibullah Shaikh for the Complainant.

Date of hearing: 15th October, 1986.

This bail application is moved on behalf of the applicant only on the ground that he has remained in custody for more than two years. He was admittedly arrested on 31‑7‑1984 but the trial has not commenced. The learned IIIrd Additional Sessions Judge, Sukkur, while dismissing the bail application of the applicant has remarked 'No doubt the accused has remained in jail without his default but report of the concerned police station indicates that the applicant is dangerous, desperate and hardened criminal'. To appreciate the arguments of the learned counsel it is necessary to reproduce fourth proviso to subsection (1) of section 497, Cr.P.C. which reads as under:‑--

"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."

The bare reading of this proviso would show that Court has to form its own opinion that the accused is hardened, desperate anti dangerous criminal. Mere report of the police that he is dangerous and hardened criminal without indicating such acts on his part which can enable the Court to come to such decision would not be relevant or' material for forming such an opinion. The order of the learned Additional Sessions Judge does not show that the police report indicated any such acts on the part of the applicant.

The learned counsel has relied on P L D 1986 Pesh. 92 wherein learned Single Judge of the Peshawar High Court has held:‑--

"If a bare charge is allowed to be a proof for a person declaring him a hardened criminal and desperate 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 a person is a previous convict. If, however, there is nothing against a person. except the bare allegation or a mere charge for all intents and purposes he is presumed to be as much a responsible citizen as others of soft character."

I am in respectful agreement with the view of the learned Judge of Peshawar High Court that bare charge is not sufficient to prove that the accused person is desperate and hardened criminal but respectfully differ from the view that he can be considered a dangerous desperate and hardened criminal only if he is a previous convict. If this view is accepted, the first portion of the fourth proviso making third proviso not applicable to previous convicted offenders would become redundant. In this view, I am supported by the case reported in PLD 1986 Kar. 437 wherein a learned Single Judge of this Court has held:,‑--

"Word 'criminal' used in the fourth proviso is to be understood in the ordinary sense. In the Concise Oxford Dictionary this word 'criminal' has been given two meanings, firstly of the nature of crime and secondly guilty of crime. In Ballentine's Law Dictionary as an adjective it is defined to mean relating to or having the character of crime and as a noun it is defined to mean a person who has committed a crime. In Stroud's Judicial Dictionary 'crime' is defined but 'criminal' as such is not separately defined but prefixing as an adjective several resultant words such as 'criminal act' criminal case, 'Criminal Law' and so on are defined. Now when fourth proviso was being drafted, the Draftsman had in view both ordinary meanings. In the first clause previously convicted offenders as persons guilty of crime were excluded from benefit of bail and in the second clause, hardened, desperate or dangerous criminals as persons, who are connected with crime (although not convicted previously) have been excluded."

The learned Single Judge in the above case has further held:

"In the context of fourth proviso to section 497(1), Cr.P.C. on the question whether finding in regard to an accused person being hardened, desperate or dangerous criminal can be given by the Court by reference to the facts of bail application or by reference to other extraneous matters. Division Bench of our High Court in Haji v. State Criminal Bail Application No. 444 of 1985 has answered that Court can form the opinion on the basis of record or the extraneous circumstances, which may be brought to the notice of the Court."

The mere fact that the applicant has been accused of murder would not necessarily make him dangerous, hardened or desperate criminal because in third proviso to subsection (1) of section 497 concession of bail has been extended even to those persons who are accused of offence punishable with death. However, the Court has to form its own opinion taking into view the material before the Court. In the instant case the applicant alongwith others are alleged to have committed murder of Allah Rakhio, because they suspected that his son Abdul Majid had illicit connections with Mst. Nawabzadi wife of Khar. Muhammad a relative of the applicant, apart from the argument that the murder of father because of alleged misconduct of his son is a cruel act, the way they have committed the murder also shows brutal and callous acts on the part of murderers. Murder itself is a brutal act but in this case the present applicant alongwith co‑accused Arbelo are alleged to have severed the head of the deceased and then Arbelo is alleged to have taken away the head. This act of severing of head of the deceased is not only brutal and barbarous but also indicates the cruel tinge in the nature of the person who committed such act. Only hardened, dangerous and desperate person can commit such an act. In my opinion also the alleged act by the applicant indicates that he appears to be a desperate, dangerous and hardened criminal and as such he is not entitled to any concession of bail under third proviso to subsection (1) of section 497, Cr.P.C. The bail application is, therefore, rejected.

It may be pointed that all the views expressed and observations made in this order are of tentative nature and the trial Court is expected to decide the case unprejudiced by the observations in this order.

S.A. /5180/K Bail refused.

Find a Lawyer Near You

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